Smt. B. Prathima
XXVI ADDITIONAL CHIEF JUDGE
HYD, City Civil Court Complex · Hyderabad · Telangana
SMT. B. PRATHIMA, XXVI ADDITIONAL CHIEF JUDGE, is posted at HYD, City Civil Court Complex, Hyderabad, Telangana, India. 493 court orders on record since 2019. 5 judgments with full text available. Primarily handles OS, OP, AS cases.
Featured Judgments
IN THE COURT OF XXV ADDITIONAL CHIEF JUDGE, CITY CIVIL COURT
AT HYDERABAD.
Saturday, this the 30th day of April, 2022
PRESENT: SMT. B. PRATHIMA XXV Additional Chief Judge
ORIGINAL SUIT NO.184 of 2007
Between:
1. P.V. Ravindranath Choudhary S/o Late P.V. Choudary, aged about 52 years, R/o Nuthimadugu village, Kambadur Mandal, Ananthapur District.
2. P.V.Srinivasulu Choudhary S/o Late P.V.Choudary, aged about 47 years, R/o Nuthimadugu village, Kambadur Mandal, Ananthapur District.
3. P.V.Gopal S/o Lat P.V.Choudary, aged about 43 years, R/o 7/275, Court Road, Ananthapur District. ….Plaintiffs
AND
1. J.Ramalakshmi W/o J.Ramaiah R/o 10-4-771/A/302, Sreeram Nagar Colony, Masab Tank, Hyderabad.
2. P.V. Satyanarayana Choudhary S/o Lat P.V. Choudary, aged 63 years, Occ: Business, R/o D.No.1-8-747/6, Nallakunta, Hyderabad.
3. Y.Akkamma W/o Y.Hanumantharayudu, aged about 70 years, Occ: Housewife, R/o Nuthimadugu village, Kambadur Mandal, Ananthapur District.
4. P.V. Ram Mohan Choudhary S/o P.V.Choudary, aged 65 years, R/o D.No.5-75, P.V.C. Colony, Ballari Road, Ananthapur District. (Died Per Lrs D9 to D11)
5. Y.Venkata Lakshmamma W/o Thimmaiah Choudary, aged 60 years, Maradakunta Gramam, Kalyandurg Mandal, Anantapur District.
6. K.Lalithamma W/o K.Chalapathi, aged about 48 years, R/o D.No.275/A, Ashok Nagar, Ananthapur District.
7. P.V.Padmavati W/o P.V.Ravindranath Choudhary, aged 60 years, R/o Nuthimadugu village, Kambadur Mandal, Ananthapur District.
8. P.V.Adisesha S/o Late Y.Hanumantharayudu, aged 53 years, R/o 5-72, P.V.Choudhary Colony, Opp: Hanuman Statue, Bellary Road, Anantapur (Town), AP- 515001.
(Defendants 7 and 8 are added as legal heirs of defendant No.3 as per orders
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passed in IA No.288/2021 dated 19-03-2021)
9. P.V.Andemma W/o P.V.Ram Mohan Choudary, aged 70 years, R/o D.No.5-75, P.V.C. Colony, Ballari Road, Ananthapur, Ananthapur District.
10. P.V.Anita W/o Adisesha, aged 40 years, R/o 5-72, P.V.Chowdhary Colony, Opp: Hanuman Statue, Bellary Road, Anantapur (Town), AP-515001.
11. P.V.Chowdhary S/o P.V.Ram Mohan Choudhary, aged 36 years, R/o D.No.5-75, P.V.C. Colony, Ballari Road, Ananthapur, Ananthapur District.
(Defendants 9 to 11 are added as legal heirs of defendant No.4 as per orders
passed in IA No.290/2021 dated 19-03-2021) ….Defendants
This Suit came before me for final hearing and disposal in the presence of Sri Damodar Mundra, Advocate for the Plaintiffs, Sri G.Seshadri, Advocate for Defendant No.1, Sri M.Nageswara Rao, Advocate for Defendant No.2, Sri C.Gunaranjan, Advocate for Defendant No.4, Sri, G.Venkateswarulu, Advocate for Defendant No.5, Sri S.Malla Rao, Advocate for Defendant No.6 and of Sri G.vasantha Rayudu, Advocate for Defendant No.8 to 11, Defendant No.3 died, Defendant No.7 remained absent and set ex parte, upon hearing both the counsel and on perusing the material available on record and the matter having stood over for consideration till this day, the Court delivered the following:
:: J U D G M E N T ::
1.Three Plaintiffs, all brothers filed the suit seeking partition of suit schedule A and B immovable properties among the plaintiffs and the defendants and for allotment of share by metes and bounds and separate possession thereof and for cancellation of
Judgment and Decree in OS 113 of 2001 dt.26-06-2001. D6 filed written statement with Counter claim seeking partition of several other properties. Though the plaintiffs are not prosecuting the suit, the suit for partition is continued without transposition of parties along with the Counter Claim of Defendant No.6.
Plaint averments in Brief are as follows:
2.1 Plaintiffs 1 to 3 and defendants 1 to 6 are brothers and sisters and Defendant
No.7 is the mother of plaintiffs and defendants. Plaintiff No.1, 2 and 3 are the 6th and 9th defendants sons of late PV Choudhary and defendant No.1 is the daughter of late
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PV Choudahary. D2 is the 3rd son of late PV Choudhary. D3 is the 1st daughter of late
PV Choudhary and D5 is the 5th daughter and D6 is the 7th daughter of late PV
Choudhary.
2.2Late PV Choudhary was an Ex-MLA and Minister of State of Andhra Pradesh.
During his tenure as MLA, Government of AP allotted land in favor of Sri
Venkateswara Co-operative House Building Society for allotting the same among the legislatures after dividing the same into plots. Said Society allotted plot bearing
No.321-A admeasuring 600 Sq Yd in Sy. No.403/1 of Shaikpet village and Sy.
No.102/1 of Hakeempet village at Road No.12 MLA’s Colony Jubilee Hills and the same was duly registered in the name of late P.V.Choudhary by way of registered sale deed Doct. No.3047 dt.08-11-1984.
2.3Father of plaintiffs died on 14-07-1990 leaving behind the plaintiffs and defendants as his legal heirs and successors. After the death of late P.V.Choudhary, plaintiffs and defendants partitioned all Joint Family properties among themselves except the suit schedule property. At that time, they expressed a desire that they should develop the suit property by way of construction of flats for their own enjoyment as the same is in Hyderabad City which is also useful for family needs of all members.
Therefore the suit property was not partitioned and it is in joint possession and enjoyment of all the parties to the suit.
2.4One Real Estate Developer approached plaintiff No.1 on 10-02-2007 and submitted proposal for developing the suit property by construction of flats. Plaintiff
No.1 as per their earlier understanding approached all the parties to the suit and surprisingly D1 and D2 informed that no other family member is having any right and they alone are having absolute right and that they got a decree from the Hon’ble Court and that the suit property exclusively belongs to them. Plaintiff No.1 informed the same to other plaintiffs and defendants and they approached D1 and D2 and questioned their absolute right over the suit property and demanded for partition.
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2.5D1 and D2 failed to give any details of the so called decree. Plaintiffs came to
Hyderabad and inquired with regard to the suit and found that D1 and D2 colluded with each other and got a decree by creating forged documents and presupposing material facts and without making all the family members or co-sharers as parties the suit and they filed OS 113 of 2001 on the file of III Addl. Chief Judge, City Civil
Court, Hyderabad by D1 against D2. They obtained decree by playing fraud on the court by colluding and filing a compromise memo without the knowledge of the plaintiffs or other defendants.
2.6Plaintiffs and defendants are joint owners and are in joint possession of the property and are joint absolute owners. D1 andD2 have no absolute right over the suit property. Hence, the suit for partition and for cancellation decree dt.26-06-2001.
Written Statement averments of Defendant No.1:
3.1A and B schedule properties are the exclusive properties of D1 and D2 respectively. Originally both the properties were comprised in a single plot admeasuring 600 Sq Yd which had been allotted to late P.V.Choudhary father of the parties by Venkateswara Co-operative Building Society for legislatures limited. During his life time late P.V.Choudhary executed an unregistered Will bequeathing half of the plot in favor of D1 and other half in favor of D2. Late P.V.Choudhary died in the year 1990 and said part of the plot devolved on D1. Ever since, D1 is in joint possession of the same till it was partitioned in the year 2001 in pursuance of compromise arrived at after filing OS 113 of 2000 on the file of 3rd ACJ, CCC, Hyderabad by D1 against D2.
3.2D1 paid an amount of Rs.12,000/- towards betterment charges to Venkateswara
Co-operative House Building Society through Bankers Cheque dt.11-12-1992 in respect of the suit property. D1 and D2 paid Rs.18,000/- to Municipal Corporation of
Hyderabad towards vacant land tax. D1 and D2 have been in possession and enjoyment of the suit property without any interruption. Plaintiffs never treated the suit property as joint family property.
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3.3In the year 2001, when D1 demanded D2 for partition and when D2 avoided the same, D1 filed the suit for partition and after the decree, D1 is in exclusive possession of northern side of the plot. A Schedule property is the exclusive property of this defendant and there exists no joint family property as stated in the plaint and this suit is not maintainable. Late P.V.Choudhary had large extent of agricultural lands in his native village, Nuthimadugu in Anantapur District besides possessing large extents of agricultural and non-agricultural properties in and around Anantapur and Kalyandurg towns. After the death of late P.V.Choudhary, all the properties at Nuthimadugu,
Kalyandurg and Anantapur devolved upon his legal heirs, the parties to the suit.
Thereafter the sons of said late P.V.Choudhary are enjoying all the properties situated at Nuthimadugu, Kalyandurg and Anantapur, but plaintiffs, D2 and D4, without consent of D1 are enjoying the joint family properties.
3.4It is incorrect that the plaintiffa and the defendants partitioned all the joint family properties among themselves except the suit property. Since the suit property was held by late P.V.Choudhary as his self acquired properties and he bequeathed the part of the property to D1. Late P.V.Choudhary never showed the suit property as joint family property in the earlier transactions during his lifetime. The agricultural land, houses at Nuthimadugu and bus routes and other urban properties at Anantapur and
Kalyandurg as joint and the same are enjoyed by plaintiffs D1 and D4. D1 came to know that half of the suit property was in fact shown as the property of D1 in the partition effected between the sons of late P.V.Choudhary so that D1 filed suit against
D2 for partition. In fact, the other half of the suit property was excluded consciously from partition as the same was given to D2 by late P.V.Choudhary.
3.5None of the legal heirs of late P.V.Choudhary ever treated the suit property as joint family property and at no point of time they thought of construction of flats for their own enjoyment. Late P.V.Choudhary purchased and provided some property in the name of plaintiffs, D2 and D4 with funds of the joint family. Plaintiff never
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approached D1 for partition of suit property. Present suit filed by plaintiffs to set right the partition effected between plaintiffs, D2 and D4 and they are trying to give properties to other defendants including D1.
3.6D1’s husband worked in Handicrafts Department for a long time and her family settled in Hyderabad. Late P.V.Choudhary used to stay in the house of D1 whenever he visited Hyderabad on his political affairs and husband of D1 paid some amounts to
Venkateswara Cooperative Society at the time of allotment of the suit plot in the name of late P.V.Choudhary. Therefore, late P.V.Choudhary thought of giving his immovable properties at Hyderabad to D1 as her husband arranged the sale consideration amount to the vendor Society. D1 is openly and uninterruptedly enjoying the suit property as her exclusive property for the last more than 17 years to the knowledge of plaintiffs and other defendants and they have perfected their title to the suit property. In fact, all the parties to the suit including the mother of D1 executed a document stating that the land admeasuring 300 Sq Yd was given to D2 during the life time of late
P.V.Choudhary. Hence, the suit may be dismissed. The suit bad for non joinder of necessary parties and is barred by limitation.
Written Statement averments of Defendant No.2:
4.1A and B schedule properties are the exclusive properties of D1 and D2 respectively. Originally both the properties were comprised in a single plot admeasuring 600 Sq Yd which had been allotted to late P.V.Choudhary father of the parties by Venkateswara Cooperative Building Society for legislatures limited. During his life time late P.V.Choudhary executed an unregistered Will bequeathing half of the plot in favor of D1 and other half in favor of D2. Late P.V.Choudhary died in the year 1990 and said part of the plot devolved on D1. Ever since, D1 and D2 are in joint possession of the same till it was partitioned in the year 2001 in pursuance of compromise arrived at after filing OS 113 of 2000 on the file of 3rd ACJ, CCC,
Hyderabad by D1 against D2. D1 and D2 are in exclusive possession of their
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respective halves i.e. B and A schedule properties respectively.
4.2Late P.V.Choudhary had large extents of agricultural lands in his native village
Nuthimadugu in Anantapur district besides possessing large extents of agricultural and non agricultural properties in and around Anantapur and Kalyandurg towns. After the death of late P.V.Choudhary, the properties devolved upon his legal heirs including the parties to the suit. Thereafter sons of late P.V.Choudhary partitioned all the properties situated at Nuthimadugu including bus routes of which Chellakera to Dharmavaram fell to the share of D2 and kept the properties situated at Anantapur and Kalyandurg as joint family properties. In respect of said joint family properties, D4 being the eldest son of late P.V.Choudhary has been managing the same. The details of the properties remained in joint and liable to partitioned among the parties to the suit are as follows:
1. Land admeasuring Ac 10-09 cents in Sy. No.39/5, 39/6, 39/7 54/1A, 55/1A and 40/3 at Papampet Village, Bellary Road, Anantapur.
2. Plot No.10 admeasuring Ac 0-10 cents at Court Road, Anantpaur, Municipal
Area, Anantapur Dt.
3. House bearing No.7/188 admeasuring Ac 0-10 cents at Court Road, Anantapur
Municipal Area, Anantpaur Dt.
4. Land admeasuring Ac 04-37 cents in Sy. No.95/1B at Kakklapally Village,
Rudrampet Grampanchayat, Anantapur Rural.
5. Open land admeasuring Ac 00-18 cenets in TS No.2`33 at Ashok Nagar,
Anantapur.
6. All tht 1/4th share in Cinema theatre i.e. Venkateswara Picture Palace and appurtenant land situated at Kalyandurg Town and Mandal Anantapur town.
7. Share certificates (1200) vide Certificate No.188, 1490, 4469 and 12681 relating to Super Spinning Mills, Hindupur, Anantapur District.
4.3Mother of parties used to live with plaintiff No.3 till her death. During his
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lifetime late P.V.Choudhary kept 120 tulas gold, 6 kg silver ornaments with her. After death of late P.V.Choudhary, 1200 share certificates of Super Spinning Mill were kept with the mother of the parties. After death of mother of parties, the 120 tulas gold, 6 kg silver ornaments and 1200 Super Spinning Mill share certificates were taken by plaintiff No.3 and they are in the custody of plaintiff No.3 and they are liable to be shared among all the parties to the suit.
4.4D2 had been demanding for partition of joint family properties for the last more than one year for which plaintiffs and D4 are not co-operating. Suit property was never regarded as joint family property as it was held by late P.V.Choudhary as his self acquired property and he never showed the suit property as joint family property in his earlier transactions during his lifetime.
4.5After death of late P.V.Choudhary the agricultural land, houses at
Nuthimadugua and bus routes were only partitioned keeping the urban properties at
Anantapur and Kalyandurg as Joint. Half of suit property was allotted to D2 in the partition list executed between the sons of late P.V.Choudhary by including the value of the 300 Sq Yd of suit land to the share of D2 so that no claims could be in the future and the other half of the suit property was consciously excluded from partition list as it was given to D1 by late P.V.Choudhary.
4.6Late P.V.Choudhary and his cousin Venkatappa continued as joint family till the death of Venkatappa also the sons of late Ventakatapp continued in joint family till 1989. In the year 1989, sons of Venkatappa viz., Sannappa Chowdary and Govind
Chowdary left the joint family by taking higher share by filing compromise petition in
IA 49 if 1989 in OS 123 of 1986 on the file of Principal Subordinate Judge, Anantapur
filed against late P.V.Choudhary and parties to the suit. In said partition suit, present suit plot was not shown as joint family property as the same was exclusive property of late P.V.Choudhary. All parties to the suit are well aware of the exclusive right of D1 and D2 over the suit properties. D1’s husband worked in Handicrafts Department for a
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long time and her family settled in Hyderabad. Late P.V.Choudhary used to stay in the houses of D1 and D2 whenever he visited Hyderabad on his political affairs.
Therefore, late P.V.Choudhary thought of giving his immovable properties at
Hyderabad to D1 and D2 as they arranged the sale consideration amount to the vendor Society. In view of the same, late P.V.Choudhary, of his free will and volition executed a Will in favor of D1 and D2 bequeathing the suit property.
4.7D1 and D2 are openly and uninterruptedly enjoying the suit property as their exclusive property for the last more than 17 years to the knowledge of plaintiffs and other defendants and they have perfected their title to the suit property. Hence, the suit may be dismissed.
Written Statement and Counter Claim averments of Defendant No.6:
5.1The relationship between the parties is admitted. It is true that father of plaintiffs died on 04-07-1990 leaving behind the plaintiffs and defendants as his legal heirs and successors. D6 is not party to any partition of the joint family properties and according to D6 there is no partition of all joint family properties as required by law.
All the properties available as on the date of death of their father are liable to be partitioned and D6 is entitled for 1/9th share.
5.2Suit property is part and parcel of joint family properties left behind the father of the parties and it is one among several movable and immovable properties left behind and plaintiffs and defendants are joint owners and possessors and are enjoying as join owners. Plaintiffs and Defendants 1 to 6 have got equal share. The judgment and decree passed in the suit between D1 and D2 is not binding on D6. D6 is not a party to said suit. D6 has no knowledge of the present suit till 2013. The details of properties left behind by the father of plaintiffs and defendants are as detailed in the written statement.
1. Land Ac 263-72 cents at Nuthimadugu Village.
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2. 752.71 Sq Yd in Court Road with tin sheds.
3. Building with ground and first floor 444-88 Sq Yd No.7/275 Court Road
4. Ac 04-37 cents at Kakkalapally Village.
5. Plot No.321/A 600 Sq Yd, Hyderabad.
6. 25% share in Cinema theater, Venkateshwara Picture palace with land and structures admeasuring 4491-31 Sq yd at Kalyan Durgam
7. Ac 10-09 cents at Papampet village.
8. 1200 Shares of value of Rs.72,000/- Super Spinning Mill
9. 2805 shares of Value of Rs.4,55,000/- of Private Ltd.
10.Bus Route from Dharmavaram to Cehllkeru
11. Bus route fro Chellkeru to Dharmavaram 12.Bus route from Krishnapuram to Dharmavaram 13.Tractor bearing No.3854 with trolley 14.Ambassador car No.AAA 4903 15.Contessa car No.GDF 2515 16.Gold 120 Tolas and 6kg of silver ornaments.
17. Sheep 500 18.Cattle 150 19.Agricultural implements.
5.3After receiving caveats from D2 and D4 separately, D6 became to know that plaintiffs and defendant No.2 & 4 by colluding entered into and executed a registered partition deed on 08-01-2013 as Doct. No.456 of 2013. D6 and other sisters are not parties to said partition deed. It is outcome of collusion between the parties thereto. Ac 0-10-91 cents out of Ac 00-20 cents standing in the name of son of of D8 by name
Kalyan Chakravarhy is also included in the said registered partition deed. Said property is not joint family property. The details of the partition deed properties are as
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given in the counter claim. All the properties left behind by the father of the plaintiffs are not shown in the registered partition deed.
5.4During his life time, father of the parties sold land in Sy. No.16 & 28 of
Papampet village and other joint family properties and with the sale proceeds he purchased Ac 10-09 in Sy. No.54/1A, 5/1A and 40/3, 39/5, 6, 7. said property is also liable for partition. Hence, the counter claim for partition of the properties shown in the Schedule of the Counter claim.
Reply Averments of Plaintiff No.1 to the Counter Claim of D6:
6.1Father of the parties died in the year 1990 and D4 managed the joint family.
Disputes arose and the male members decided to live separately by enjoying the joint family properties till said partition. At the instance of D4, they agreed to reduce into writing in the year 1992 about the properties in which they are in possession by temporary arrangement. Their father died in the year 1999. Nobody came forward for partition. Plaintiff No.1 is doing agricultural work at Nuthimadugu and has no
Knowledge of the survey numbers and boundaries of the properties situated at
Anantapur. D4 and P3 sold some extent of lands at Nuthimadugu village in favor of third parties without any partition to meet the joint family expenditure, but they did not give the sale proceeds to the joint family. D3 and P4 purchased properties in the name of their family members with the funds of said sale proceeds. To avoid plaintiff No.1’s critical financial position, plaintiff No.1 also sold some extent in favor of 3rd parties.
Inspite of repeated requests of plaintiff No.1, D4 who managed the joint family did not give the particulars of the urban properties held by the joint family.
6.2Later plaintiff No.1 came to know about the 600 Sq Yd standing in the name of their father and which is in possession of D1. Plaintiff No.1 is under impression that is only an urban property. As per pleadings of D4, D6 and P3, plaintiff No.1 came to know that there are so many urban properties in the hands of D4 and plaintiff No.3 which are to be partitioned. The document executed on 26-04-1992 between plaintiff
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No.1 and his brothers is not valid. Regarding the registered partition deed dated 08-01- 2013, the other brothers did not allow plaintiff No.1 to read that document and plaintiff
No.1 came to know that he was deceived to get the document registered. Said document is not valid as all the legal heirs of late P.V.Choudhary are not parties to the partition deed.
6.3The joint family acquired landed properties at Bhimunikunte village, Pavagadda
Taluk, Tumkur District, Karnatkaa State through ancestors of their mother and the same are being enjoyed jointly and some extent of land was sold to third parties. Their father was also having shares in KB Foams at Bangalore and the same is being looked after by D4 who is the elder son. Hence they are also liable for partition.
6.4The family is having license bus routes between Dharmavaram to Chellker and they used to run two buses. The license stands in the name of elder son D4. The income derived from said routes is being shared by P1, P2, P3 and D2 and D4. D1,
D3, D5 and D6 have no right to share in them and the bus routes are not divisible. Said routes are being looked by D2 and D4 and the total income is Rs.1,00,000/- per month which is shared by the 5 brothers equally i.e. at Rs.20,000/- each. Hence, plaintiff
No.1 is entitled for 1/9th share in the suit schedule and counter claim properties.
Reply Averments of D1 to the Counter Claim of D6:
7.1Husband of D1 contributed half of amount for purchase of the plot allotted to father of parties by Society. The plot was registered in the name of father of parties in the year 1984, but entire plot is in occupation of D1 and she protected since 1984. Late
P.V.Choudhary executed a Will, but it was lost. D1 has no knowledge regarding the other properties left by their father and whether they are intestate or not. D1’s mother told that half of suit property was given to D2. D1’s husband paid Rs.12,000/- and
Rs.18000/- for the plot as stated in the reply. After death of father of the parties, their mother late Puttamma, D1’s brothers PV Ramohan Chowdary (D4), PV Satyanarayana
Chowdary (D2), PV Ravindranath Chowdary, PV Srinivsa Chowdary, PV Gopal
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Chowdary (plaintiffs), Smt. Akkamma, (D3), Smt. Lalitha (D6) have given their consent confirming D1’s rights in respect of half share in the suit plot vide Doct. dt.29- 04-1992. Husband of D6 is the attestor of said document. Thereafter, D1 paid amount to Municipal Corporation of Hyderabad towards non-agricultural tax. Mother of the parties died in the year 1999.
7.2After summons were received by D1 in this suit, she approached the plaintiffs who said that they filed the suit only against D2 as D2 is in occupation of remaining plot i.e. A schedule property shown in the plaint and they showed entire plot as advised by the legal practitioners. Believing the same, D1 filed written statement though she has right in all the properties left behind by their father.
7.3The registered partition deed dt.08-01-2013 is not valid and is not binding on
D1. Said partition is not valid in the eye of law as per the amended Hindu Succession
Act. D1 executed a gift settlement deed in favor of her two sons in respect of B schedule property. D1 and other parties to the suit gave no objection letter to M/S
Super Spinning Mills Ltd., Coimbatore to transfer the shares in favor their mother late
Puttamma confirming the shares are joint family property. Their father was having two bus routes which were looked after by D2 and D4 and they are not divisible. D1 is also 1/9th share holder in the properties in the counter claim schedule. Hence, the suit may be dismissed and grant 1/9th share in A schedule and other properties of counter claim.
Written Statement Averments of D4 in reply to the plaint of plaintiffs and
Counter claim of D6:
8.1Plaintiffs and defendants partitioned all the joint family properties including the plaint schedule property. There was oral partition in January 1963 under which the then major sons of late P.V.Choudhary i.e. defendants 2 to 4 separated from the family and the minor sons remained with father late P.V.Choudhary. Since then there has been division in status in respect of defendant No.4. Any properties acquired by this defendant subsequently are his personal acquisitions. Later a family settlement deed
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dated 24-11-1965 evidencing the oral partition was executed. On 04-07-1990, late
P.V.Choudhary passed away. Afterwards all the parties and their mother P.V.Puttamma partitioned all the joint family properties and it was reduced into writing through deed
dated 26-04-1992, evidencing the oral partition. To avoid complications a registered
partition deed vide document No.456/2013 dated 08-01-2013 was entered into.
Mutations in revenue records were also effected earlier in the partition deed.
Defendant No.2 got 280 Sq Yd in western part of the suit schedule property and the remaining extent though held joint by the other sons of late P.V.Choudhary, each of their joint share was mentioned.
8.2The partition of joint family properties was effected with the knowledge and consent of all the daughters of late P.V.Choudhary including defendants 1, 3, 5 and 6.
Husband of defendant No.1 and husband of defendant No.6 are attestors to the unregistered family settlement deed dated 26-04-1992. The daughters of late
P.V.Choudhary were given huge amounts, gold jewelery and silver articles and costly apparel befitting the image of late P.V.Choudhary. It is understood that cash and other items given to them at the time of their respective marriages were towards their shares if any. That is the reason why they have not whispered any objection for partial partition effected in January 1963 and later partition after death of late P.V.Choudhary as evidenced by family settlement deeds dated 24-11-1965 and 26-04-1992 and registered partition deed dated 08-01-2013. The entitlement of each party in suit schedule property as evidenced by the regarded partition deed dated 08-01-2013, as detailed in the written statement.
8.3Defendant No.4 is not aware of the proposal for development of the suit schedule property. OS No.113/2001 on the file of III Additional Chief Judge, City
Civil Court, Hyderabad, filed by defendant No.1 against defendant No.2 is obviously and conspicuously collusive. The unregistered Will relied upon by the parties in that suit was fabricated. Hence, this defendant has no objection for setting aside said
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collusive decree. In respect of counter claim of defendant No.6, it is not maintainable.
All the properties in the counter claim are situated in Anantapur district, which is beyond the jurisdiction of this Court. There are no movable or immovable properties to be partitioned by the plaintiffs an defendants. The partition of all joint family properties were already effected which was evidenced by later documents stated above. All the parties are bound by the partition as recited in those three documents.
The details of the properties left behind by late P.V.Choudhary on the date of his death are not correctly described in the written statement of defendant No.6. The list is misconceived and it includes imaginary items. It is false that defendant No.6 learnt about the registered partition deed after receiving caveats. Said partition was entered into with the knowledge and consent of defendant No.1, 3, 5 and 6. As already stated husbands of defendant No.1 and 6 attestors to said family settlement deed dated 26-04- 1992.
8.4The registered partition deed dated 08-01-2013 was entered into in consequence of outcome of collusion between parties thereto and it is not null and void. It is binding on all the parties to the suit. Plaintiffs, defendant No.2 and 4 are rightfully entitled for exclusive right over the properties mentioned in said partition deed. Property admeasuring 23.2 cents in TS No.2133 situated at Ashok Nagar, Ananthapuram belong to joint family. Defendant No.4 suspects that defendant No.6 and her husband’s family members created some fictitious and unlawful documents in their favour to claim exclusive right. Her son C.Kalyan Chakravarthy has no valid title over any part of the property. Any document in respect of said property is not binding on the parties to the suit. If at all the earlier partition is to be reopened, this property and other properties held by defendant No.6 are to be included in the properties to be divided. All the properties available as on the date are included in the registered partition deed. Only the property standing in the name of defendants 1, 3, 5 and 6 were left out with due concern to their interests. This defendant is not entitled for any property left behind by their father. All the parties are liable to account for all the properties left behind by
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their father. There is no land of the family in Sy. No.16 and 25 of Papampeta village and no land in that survey number was sold by any party to the suit.
8.5It is false to state that family members purchased properties with the sale proceeds of land in Sy. No.16 and 25 of Papampeta village. Sy. No.54 and 55 are purchased in the name of defendant No.4’s wife by her father and she raised grape garden therein. Later on, land in Sy.No.40/3 was purchased by her with her own income. These lands are her exclusive properties. She also purchased land in Sy.
No.39/6 in favour of her minor sons with her own income. Similarly land in Sy.
No.39/7 was also exclusive property of defendant No.4 and settlement patta was also granted in her favour. The land in Sy. No.39/5 was self acquired property of defendant
No.4 and settlement patta was granted in his favour and he gifted this land to his son
P.V. Choudhary (Jr.) and this property is still under dispute with its original owners, as such there is no need to include this property in the registered partition deed. The admissions if any made by defendant No.2 against the version of defendant No.4 are not binding on defendant No.4.
8.6One P.V.Govinda Chowdhary who is a relative of this family, filed suit in OS
No.123/1986 on the file of Principal Subordinate Judge, Ananthapuram for partition and separate possession of the joint family properties. Late P.V.Choudhary was party to the suit. All the properties which are not the properties of this family were described in the decree of that suit. The decree is binding on all the parties to the suit. The decree indicates that there were earlier partition among the family members of late
P.V.Choudhary and it also confirms the oral partition of 1963. All the properties are partitioned by metes and bounds as per the registered partition deed. Defendant No.4 submits defence in respect of each of the properties in the counter claim as detailed in the written statement. Hence, the suit may be partly decreed by setting aside the decree in OS No.113/2001 dated 20-06-2001 and by dismissing further claim for partition of suit schedule properties and the counter claim of defendant No.6 may also be
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dismissed with exemplary costs.
Additional Written Statement Averments of D11 as adopted by D9 and D10
(Legal Representatives of deceased D4):
9.1This defendant has no objection for claim of plaintiff in respect of the plaint schedule property. This defendant denied the total counter claim raised by D6 relating to the properties situated at Anantapur District by including and adding the self acquired and Stridhan properties of mother of the defendant who is D9 herein. As admitted in the elaborate written statement of D4, there is prior partition of all the properties and therefore the counter claim is liable to be dismissed. The properties of mother of this defendant are not joint family properties nor there are any nucleus from the joint family properties and hence the same shall be excluded from the properties claimed by D6. Hence, the counter claim may be dismissed.
10.Basing on the above pleadings, the following issues were framed for trial on 04-07-2018:
1. Whether the judgment and decree in OS No.113/2001 dated 26-06-2001 on the file of learned III Additional Chief Judge, City Civil Court, Hyderabad be canceled as prayed for?
2. Whether the plaint schedule properties are available for partition?
3. Whether the plaintiffs are entitled for partition in the plaint schedule properties and if so to what share?
4. Whether this Court has jurisdiction to entertain the suit?
5. Whether the suit is bad for non joinder of necessary parties?
6. Whether the suit is barred by limitation?
7. Whether counter claim schedule properties are available for partition?
8. Whether counter claim/D6 is entitled for partition of counter claim schedule properties and if so to what share?
9. To what relief?
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11.I have gone through the written arguments filed on behalf of 1st defendant, 2nd defendant, defendant No.6, defendants 9 to 11, reply arguments filed on behalf of defendant No.1 to the written arguments of defendant No.6 and additional written arguments filed on behalf of defendant No.1.
12.During the course of trial, on behalf of plaintiffs, no evidence is adduced as they are not prosecuting the case. On behalf of defendants, DW1 to DW4 were examined and Ex.B1 to B86 were marked. Ex.B1 to B4 are marked through DW1 (defendant No.1). Ex.B5 to B32 and Ex.B83 to B86 are marked through DW2 (defendant No.6). Ex.B33 to B82 are marked through DW4.
13.Gist of Rival claims and Arguments advanced:
The admitted facts of the case are that Plaintiffs 1 to 3, Defendants 2 and 4 are the Five sons and D1, D3, D5 and D6 are the Four daughters of Sri PV Choudhary and his wife Puttamma. Late PV Choudhary held several movable and immovable properties. The immovable properties include houses, house plots and agricultural lands. The movables include, bus routes, buses, tractor, shares etc.. Late PV
Choudhary was also MLA in the combined State of Andhra Pradesh. Sri PV
Choudhary died on 04-07-1990.
The three plaintiffs filed the suit for partition in respect of 600 Sq Yd of plot in
Jubilee Hills, Hyderabad shown as A and B Schedule property and also to cancel the
Judgment and Decree dt.26-06-2001 in OS 113 of 2001 on the file of III Addl. Chief
Judge, CCC, Hyderabad. Significantly, plaintffs claimed that their father held several
movable and immovable properties which were paritioned, that only the plot at Jubilee
Hills was left undivided so as to give the same for development and for share the proceeds among all the children of PV Choudhary, that D1 and D2 filed a collusive suit and got the impugned Decree and thus, sought for parition and cancellation as stated above.
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It is seen from the written statement of D1 and D2 that they claim to have acquired the suit schedule A and B property which was earlier one piece of land of 600
Sq Yd from their father in equal shares and in the year 2001, D1 filed the suit for partiTIon of said property against D2 vide OS 113 of 2001, that said suit was compromised whereunder A schedule fell to the share of D1 and B schedule fell to the share of D2.
D4 had taken the plea that here was oral partition in the month of January 1963 under which the then major sons of late P.V.Choudhary i.e. defendants 2 to 4 separated from the family and the minor sons remained with father late P.V.Choudhary, that since then there has been division in status in respect of defendant No.4, that any properties acquired by D4 subsequently are his personal acquisitions, that later a family settlement deed dated 24-11-1965 evidencing the oral partition was executed, that on 04-07-1990, late P.V.Choudhary passed away, that after his death all the parties and their mother P.V.Puttamma partitioned all the joint family properties and it was reduced into writing through deed dated 26-04-1992, evidencing the oral partition and to avoid complications, a registered partition deed vide document No.456/2013 dated 08-01-2013 was entered into and earlier to the partition deed itself mutations in revenue records were also effected.
The above claims of D4 are totally denied by D6. In view of the rival contentions burden is on all parties to produce the evidence available with them in support of their respective cases.
Plaintiffs abandoned the suit midway and they did not adduce any oral or documentary evidence. As there is counter claim of D6 seeking for partition of the not only the plaint schedule properties, but also other properties, trial continued without transposition of parties. it is also important to note that as seen from the written arguments filed on behalf of D1, D2, D4 and D9 to D11, they all sought to dismiss the suit as well as the counter claim. Learned counsel for D6 filed elaborate written
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arguments seeking to decree the suit as well as the Counter Claim.
Learned counsel for D6 submitted that plaintiffs, D4 and D6 who appeared in the suit are all challenging the binding nature of the Judgment and Decree in OS 113 of 2001. On Issue No.1, learned counsel for D6 submitted that as is evident from the
CC of plaint filed in OS 113 of 2001, said suit was only between D1 and D2 for partition of A and B schedule properties i.e. 600 Sq Yd of land in Jubilee Hills
Hyderabad, that said property was the self acquired property of late PV Choudhary who died intestate, that all the children of late PV Choudhary are Class I legal heirs and they inherit Schedule A and B properties as joint owners/tenants in common.
Learned counsel further submitted that in their written statements D1 and D2 took plea that their father gave it to them under a Will deed, but failed to file the same and as such this Court can refuse to uphold the validity of the Will Deed which has not seen the light of the day and furter submitted that even DW1 testified that she had not seen the Will till date.
Learned counsel for D6 next referred to the oral evidence of the parties and submitted that there is no testamentary disposition by late PV Choudhary bequeathing schedule A and B properties in favor of D1 and D2 and thus, it is to be held that this property under A and B schedule is joint property of the plaintiffs and D1 to D6 and that it is to be partitioned.
This Court observes that no doubt, D1 and D2 in their written statement took plea that they got Schedule A and B properties under a Will from their father. It is also a fact that no such Will Deed of PV Choudhary is filed before the Court and on the other hand, DW1 stated that she did not see the Will Deed. As rightly stated by the learned counsel for D6, in a suit for partition, all the parties should be treated as plaintiff as well as defendants and it is duty of all the parties to bring forth before the court, the properties available for partition, the sharers entitled for a share and the entitlement of each sharer. It is seen that some of the defendants did not appear in the
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case. D4 had taken a specific plea that partition was effected long back in the year 1963 of all the properties of late PV Choudhary and specifically claimed that there are no joint properties of late PV Choudhary to be partitioned. D4 however claimed that all the children of late PV Choudhary are entitled for a share in Schedule A and B properties and sought to cancel the Judgment and Decree in OS 113 of 2001. this
Court observes that in the light of the rival contentions taken, solely on the ground that
D1 and D2 failed to produce the Will Deed under which they claim to have got the suit property and also on the ground that all the legal heirs of late PV Choudhary were not made parties to OS 113 of 2001, this Court cannot straight away conclude that the
Judgment and Decree in OS 113 of 2001 is not binding on plaintiffs and D3 to D6.
This Court has to necessarily discuss the oral and documentary evidence on record, to come up with conclusions on the aspect of properties, sharers and entitlement of each sharer. Only after such appreciation, this Court can decide on the validity and binding nature of the Judgment and Decree in Os 113 of 2001. Hence, Firstly, Issues No.2, 3 7 & 8 are to be taken up for discussion.
Learned counsel for D6 in his elaborate written arguments cited several authorities in support of the legal proposition relied upon by him. The law applicable in a suit for partition, the burden of proof and other aspects are succincly discussed by the Apex Court in several case. Wherever relevant, the case law cited by the learned counsel for D6 is discussed.
14. Legal Principles applicable:
14.1 On Burden of Proof:
14.2As the suit is one for partition, as rightly stated by the learned counsel for D6, the burden is on both sides i.e plaintiffs and Defendants who are family members to come with all the facts within their power and knowledge in their respective pleadings.
In support of this proposition, learned counsel for D6 referred to the authorities of (1)
T. Panchapakesan (Died) And Ors. vs Peria Thambi Naicker (Died) AIR 1973
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Mad 133 (2) S. Sathnam Singh and Others vs Surender Kaur and Others AIR
2009 SC 1089 (3) K. Ramanjaneyulu vs S. Abdul Rahiman andOthers 2005 (6)
ALD 8. On this aspect, it is necessary to refer to the observation of their Lordships of our High Court which are as follows:
“9. The lower appellate Court sought to explain the serious discrepancy and defect, in the version of the defendants, by observing that it is for the plaintiff to prove his case, and that he cannot depend upon the weakness of the case of the defendants. The said observation would certainly have been correct, had it been a suit of other categories. In a suit for partition, irrespective of the manner in which a party is arrayed, one is entitled to the benefit, and subject to obligation, as any other. The suits of this nature loose their adversarial character and thereby, the lines of conflict virtually get blurred. The effort of the Court in a suit for partition would be only to ascertain the entitlement of the parties to the shares, irrespective of the fact whether they figure as plaintiff or defendant, and to determine the properties that are available for partition. [Agri Devasenani And Ors. vs Maudem Lakshmi 2008 (1) ALD 647] 14.3The proposition laid down in the authorities cited by the learned counsel for D6 are on the same lines as above. In view of the authorities, burden is on both sides to bring before this Court, the properties available for partition, the sharers entitled for a share and the entitlement of each sharer.
15.1 On HUF and Presumption of Jointness of Family and the Properties:
15.2Learned counsel for D6 referring to the authoirty of the Apex Court in
Adiveppa and Ohters Vs Bhimappa and Anr (2017) 9 Scc 586 submitted that in this case, the Supreme Court held that all assets pertianing to HUF are to be treated as
JOInt proeprty of the HUF unless the contrary is proved as self acqusition of property.
The relevant paragraph cited is as under -
22) It is a settled principle of Hindu law that there lies a legal presumption that every Hindu family is joint in food, worship and estate and in the absence of any proof of division, such legal presumption continues to operate in the family. The burden, therefore, lies upon the
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member who after admitting the existence of jointness in the family properties asserts his claim that some properties out of entire lot of ancestral properties are his self-acquired property. (See-Mulla - Hindu Law, 22nd Edition Article 23 " Presumption as to co-parcenary and self acquired property"- pages 346 and 347).
15.3It is to be noted that the case before the Apex Court is one where a plea is taken that the some of the properties which are in the pool of ancestral properties are claimed as self acquisitions. In the present case, it is not disputed that late PV
Choudhary had movable and immovable properties. It is to be seen which of the properties are in the name of individuals and if at the time of acquisition of the same, whether the family was joint and if the property acquired in the name of individual member of the joint family, most particularly female member, can be as a matter of fact treated as joint family property only for the reason that the female member is member of the joint family. Here, it is necessary to refer to the important case law and authorities on the Presumption and burden of proof on the aspect of Coparcenary/Joint
Family property and Self Acquired Property.
15.4In Mulla's Hindu Law Eighteenth edition at page 232 Paragraph 233, the following is quoted on the presumption of Coparcenary vis a vis the self acquired property and this passage is favorably approved and quoted by the Supreme Court of
India in several cases.
"233. Presumption as to Coparcenary and Self-Acquired Property:
(1) Presumption that a joint family continues joint:- Generally speaking, the normal state of every Hindu family is joint. Presumably every such family is joint in food, worship and estate. In the absence of proof of division, such is the legal presumption. In other words, given a joint Hindu family, the presumption is, until the contrary is proved, the family continues joint. The presumption of union is the greatest in the case of father and sons." 15.5In Rukhmabai v. Laxminarayan 1960 AIR(SC) 335, the Supreme Court laid down as follows:
“5. There is a presumption in Hindu Law that a family is joint. There can
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be a division in status among the members of a joint Hindu family by definement of shares which is technically called "division in status", or an actual division among them by allotment of specific property to each one of them which is described as "division by metes and bounds". A member need not receive any share in the joint estate but may renounce his interest therein, his renunciation merely extinguishes his interest in the estate but does not affect the status of the remaining members vis-a-vis the family property. A division in status can be effected by an unambiguous declaration to become divided from the others and that intention can be expressed by any process. Though prima facie a document clearly expressing the intention to divide brings about a division in status, it is open to a party to prove that the said document was a sham or a nominal one not intended to be acted upon but was conceived and executed for an ulterior purpose. But there is no presumption that any property, whether movable or immovable, held by a member of a joint Hindu family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property to establish that fact. But if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property to establish that the said property has been acquired without any assistance from the joint family property.”(emphasis supplied) 15.6In Mudigowda vs. Ramchandra (AIR 1969 SC 1976) the Apex Referring to several authorities of its own and observations of Sir John Beaumont in
Appalaswami v. Suryanarayanamurti, ILR (1948) Mad 440=AIR 1947 PC 189
held as follows:
"6. "…..............There is no presumption that a Hindu family merely because it is joint, possesses any joint-property. The burden of proving that any particular property is joint family property, is, therefore, in the first instance upon the person who claims it as coparcenary property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. This is however subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate."
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15.7The observations of the Apex Court on the Joint Family and presumption of jointness of the properties of the joint family is still governing this sphere of Hindu law and there is no change in the law. Thus, the settled latest position of law is that there is a presumption that every Hindu Family is a Joint Family, but the same does not extend to the property possessed by an individual member of the Hindu Family and burden of proving that the property is joint family property is on the person who asserts the jointness of the property. At the same time when it shown that the property is ancestral property of which a member claims as his/her self acquisition, burden is on the member who asserts so.
16.1 Right of the daughter to claim a share in the property as a Coparcener/Joint Family Member:
16.2At this stage, it is also apt to discuss about the Right of a daughter to claim share as a coparcener in the join family/coparcenary property as an argument is submitted by the learned counsel for D6 that D6 being the daughter is entitled to the benefit of having a share in her father’s property and even otherwise, the properties being joint family properties she is entitled to claim a share on par with her brothers by virtue of amended Section 6 of Hindu Succession Act.
16.3In the case Prakash and Ors vs Phulvati and Ors 2015 (6) A L D 180, before the Supreme court of India, the question raised was right of a daughter to claim share as a coparcener under the amended section 6 of Hindu Succession Act, 1956 and the retrospective or prospective operation of the amended section and from which date the daughters get the benefit of the section. The Apex Court, after referring to several authorities of its own and several High courts, held that, the benefit of claiming a share is given to all daughters irrespective of the date when they were born, but the male coparcener through whom they are claiming the share must be alive when share is sought. The Apex Court at para 23 of the Judgment held as follows:
“23. Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9th September,
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2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20th December, 2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the Explanation.” 16.4However, the Supreme Court of India in Vineeta Sharma Vs Rakesh Sharma 2020 SCC Online SC 641 (referred by learned counsel for D6) on 11-08-2020 overruled the above law in Prakash case and held as follows:
(i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.
(ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place
before 20th day of December, 2004.
(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.
16.5Thus, the latest position of law is that the daughter is a coparcener from the date of her birth and she got right to claim a share of the joint family/coparcenary property irrespective of the date of death of father, when it is proved that partition is not effected.
17.1 Plea of giving share/gifts/dowry to the daughter/sister at the time of her
marriage:
17.2It is seen from the evidence of DW4 and the line of cross-examination of DW1 and DW2 that the brothers of D6 took a plea that their father PV Choudhary had sufficiently provided for the daughters a the time of their marriages and as such they are not entitled to any share.
17.3The law is well settled on the aspect as to when property given at the time of marriage of a daughter either in the shape of gifts or dowry will be considered as her share in the properties of her parents. It is important to note that the pleadings of D4 do
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not elaborate as to the share given to their sisters. Whether giving exclusive share as dowry or otherwise if proved, amounts to giving a share in the property or not is clearly discussed and explained by our Hon’ble High Court in G V Deena Dayal and
Ors Vs Bhagirathi and Ors 2013 (3) ALD 650 (DB). In the authority referred above, our High Court held as follows:
[12] Be it in the reply to the notice issued by the plaintiff or in his written statement, the 1st defendant has taken the plea that the right of the plaintiff to claim share in the property left by her brother Bhaskarulu stood ousted, in view of the fact that she has been given gold and silver held by their mother. It is not uncommon that such situations arise. However, to oust a legal right that has accrued to an individual by operation of law, the person taking the plea must prove all the ingredients. If in fact the plaintiff was given gold and silver in lieu of her share, the facts that are required to be proved are (a) factum of giving of gold and silver ornaments to the plaintiff; (b) the value thereof and that of the share in the property; (c) the factum of the plaintiff being put on notice that the gold and silver are being given to her in lieu of her share; and (d) the acceptance of the same by the plaintiff.
17.4Thus, in the light of the legal position laid above by our High Court, it shall be proved that (a) the daughters of PV Choudhary were given sufficient property at the time of their marriages (b) the value thereof and that of the share of the daughters in the properties was ascertained at that time of giving the property (c) the daughters were put to notice that they were given such property in lieu of their share in the properties and (d) the daughters accepted for the same.
17.5Burden is only on D4 and his brothers to show that so much amount of property in such nature was given to their sisters by their father at the time of their marriages, that it was expressed that such property were given in lieu of their share in the properties of the parents and the daughters consented for the same and received the same. These aspects shall be discussed by appreciating the oral and documentary evidence on record.
17.6By applying the legal principles discussed above, it is to be first seen whether
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the properties sought for partition are available for partition? If Yes, who are the sharers and what is the entitlement of each sharer?
Issues No.2, 3 7 & 8:
18.The important question that falls for consideration in these Issues is Whether there was any partition or family settlement earlier and if the suit properties and
Counter Claim schedule properties are available for partition?. It is to be noted here that there was never any contradiction on the existence of joint family when the family
Patriarch Sri PV Choudhary was alive. Before discussing the oral evidence on record, the documentary evidence exhibited in the case is discussed.
19.Ex.B1 is filed as receipt dated 12-07-1984 issued by Venkateswara Cooperative
House Building society Limited for Legislatures, for a sum of Rs.18,000/-. The amount is shown to have been received from P.V. Chowdhary towards cost of the plot.
Ex.B2 is original registered sale deed document No.3047/1984 dated 21-12-1984, as per which plot No.321/A in an extent of 500 Sq meters or 600 Sq Yd within the given boundaries was sold by Venkateswara Cooperative House Building Society in favour of P.V. Chowdhary S/o P.Ramappa. As per market value statement appended to this document, the market value of the property is shown as Rs.18,000/-. Apparently,
Ex.B1 receipt corresponds to payment of this Rs.18,000/-. Ex.B3 is filed as receipt
dated 21-12-1992 issued by Sri Venkateshwara Cooperative House Building Society
towards payment of Rs.12,000/- as betterment charges in respect of plot No.321/A and the amount is shown to have been received from P.V. Choudhary.
20.Ex.B4 is filed as original gift settlement deed document No.1609/2012 dated 23-04-2012, executed by J.Rama Lakshmi (defendant No.1) the donor in favour of her two sons where under she bequeathed 300 Sq Yd of property in plot No.321/A which correspond to schedule of property herein. The document recites that the donor became absolute owner of the property having acquired the same under judgment and decree
dated 26-06-2001 in OS No.113/2001 on the file of III Additional Chief Judge, City
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Civil Court, Hyderabad. The gift deed also recites that the donor acquired the property from her father in the year 1984, that she has been in possession and enjoyment of her share, that donor’s father acquired the land admeasuring 600 Sq Yd from Sri
Venkateswara Cooperative House Building Society under registered sale deed document No.3047/1984 dated 21-12-1984. Evidently, this gift transaction was made during the pendency of the present suit.
21.Ex.B5 is filed as affidavit of caveator P.V.Ravindranath Chowdary in respect of certain immovable properties located at Nuthimadugu village. He filed caveat against four sisters i.e. defendant No.1, 3, 5 and 6 in the present suit. Ex.B6 is affidavit of caveator P.V.Srinivasa Chowdary who is defendant No.3 in the present suit. Ex.B7 is caveat which was filed in support of immovable properties located at Nuthimadugu village. Respondents in the caveat are the four sisters. Ex.B5, B6, B7, B8 and B9 are caveats filed by plaintiffs 1 to 3, defendant No.2 and 4.
22.Ex.B10 is filed as certified copy of registered partition deed Doct. No.456 of 2013 dated 08-01-2013. This document is between the five brothers i.e. plaintiffs 1 to 3, defendant No.2 and 4. The properties which are subject matter of this partition deed are 1,2,3,4,5 items, i.e. plot admeasuring 752.71 Sq Yd door No.7/188 of Anantapur
District, Land admeasuring 600 Sq Yd at Road No.12, Banjara Hills, Hyderabad. The other property is 240 shares at Super Spinning Mills.
23.Ex.B11 is Annexure-II certificate of market value of the property. The description of the property is shown as No.8/1273, Sy. No.431/1A/3B, 431/2A1 in an extent of 4491.31 Sq Yd with RCC construction. The certificate was issued by SRO,
Kalyandurg on 24-01-2013. Ex.B12 is another annexure-II market value certificate issued by SRO Kalyandurg dated 29-01-2013, in respect of several Sy. Nos. viz., Sy.
Nos.190-1, 190-2, 190-3, 190-4, 190-5, 191-1 in an extent of 29-50 acres, Sy.
Nos.200/2A, 200/2B, 200/2C in an extent of 28-02 acres, Sy.Nos.211/1 and 211/2 for 12-51 acres, Sy.No.212/2 17-23 acres, Sy.No.178 40-63 acres, Sy. No.214-1, 214-2
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and 327 for 15-00 acres, Sy. No.199 for 35-27 acres, Sy. Nos.75/2, 75/3A for 2-83 acres, Sy.Nos.210/1, 210/2 for 9-15 acres, Sy. No.223 under Bhudanayagnam, Sy.
Nos.325 and 326 for 25-00 acres assigned lands. Ex.B13 is annexure-II market value certificate issued by SRO, Anantapur for door No.7-2-75, TS No.2035 for 752.7 Sq
Yd, dated 23-01-2013. Ex.B14 is also annexure-II market value certificate for door
No.7-275, TS No.2035 admeasuring 444.9 Sq Yd with RCC structures.
24.Ex.B15 is certified copy of registered sale deed document No.4782/1984 dated 01-05-1984. The vendors are S.Shakeel Ali and Y.Ghouse Mohiuddin and the vendee is P.Ramappa S/o P.Venkateshwara Chowdary and the property is 16-95 acres in TS
No.2133, Ward No.4 (old) and new No.8 present No.12 and as per plan part-D, part-E, part-F of the total extent of Ac.0-39.7 cents. Ex.B16 is certified copy of registered settlement deed document No.2600/2009 dated 30-03-2009. The donor is Ch.Kalyan
Chakravarthy and the donee is K.Lalitha for plot in Door No.12/275-A new No.12-1- 964 in TS No.2133, Ward No.4 (old), new No.8 and present No.12 in an extent
A.C.16.95, A.C.7.00, A.C.0.20, H.S.0.080 with house therein. Ex.B17 to B24 are filed as property tax payment receipts paid by K.Lalitha W/o Chalapathi in respect of
H.No.12-1-964 with assignment No.11095. Ex.B25 to B32 are filed as property tax payment receipts in the name of C.Kalyanchakravarthi for the same house property as under Ex.B17 to B24.
25.Ex.B33 is marked subject to objection that it is inadmissible for want of stamp duty and registration. This is filed as memorandum of past oral partition dt.24-11- 1965. The sum and substance of this document is that on 24-11-1965 it was executed between P.V.Choudhary and his sons P.V.Rammohan Choudhary, Satyanarayana
Choudhary, Ravindranath Choudhary, Sudheer, Srinivasulu, Gopal Krishna. It refers that Ravindranath Choudhary, Sudheer, Srinivasulu and Gopal Krishna are minors represented by their father, that up to January 1963 parties were living in joint family, that P.V.Rammohan Choudhary is not interested in continuing joint family and he
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agreed to effect partition. Elders accordingly affected partition during January 1963, that A schedule in all one hand were allotted to P.V.Rammohan Choudhary and B schedule were allotted to Satyanarayana Choudhary. All the remaining properties are kept with the father P.V.Choudhary. It also refers that patta transfers were also completed, that the parties 4, 5, 6, 7 being minors they will be under support of their father. A and B schedule of properties are as listed below.
A-Schedule:
LandS.No.ExtentCist
Kushki50-12-336-15 “46-41-372-60 “51-110-320-30 “56-11-340-70 In the property right is “204-26-554-30 included along with fruit and Wet68-70-272-45flower trees along with others trees with water sources. “56-110-303-65 (as noted in Ex.B33) “85-130-669-25 “50-21-2116-95 “20-21-0212-65
B-Schedule:
LandS.No.ExtentCist
Kushki178 part81-2540-65 In the said land right of trees Wet51-30-598-30 and water sources. (as noted “71-41-1110-00 in Ex.B33) “46-11-3213-40
26.Regarding the objection for marking Ex.B33, this Court observes that said document being a Memorandum of Past Partition dt.26-11-1965 does not require stamp duty or registration and it is admissible in evidence.
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27.Ex.B34 is filed as income tax assessment for the assessment year 1967-68, issued by the Income Tax Officer dated 7-08-1968 on questionnaire filed by
P.V.Rammohan Choudhary. It recites that the coparceners of the Hindu undivided joint family have claimed partition among members of the family w.e.f. 31-03-1967, that an inquiry contemplated under Section 171(3) of the Act was conducted and that the
Income Tax Officer was satisfied about the genuineness of the partition claimed. He held that the family stands disrupted w.e.f. 31-03-1967.
28.Ex.B35 is filed as Decree and Judgment dt. 18-08-1989 in OS No.123/1986.
This suit was filed by P.Govinda Choudary against P.V.Choudary and his five sons and others (agnates), shown as sharers. As per this decree, compromise was entered into between parties vide compromise deed in terms of orders in IA No.490/1989 dated 18- 08-1989 and decree of compromise was passed. As per this decree, plaintiffs and defendant No.7 therein were allotted plaintiff A schedule properties with absolute rights as indicated in the decree. Half share was given in item No.1,2,3,5,6,7. Half share was given in item No.9 and Half share in item No.33 and 34 was given.
29.A very important aspect to be noted from this Decree of 1989 is regarding the right given to defendant No.2, 3, 4 in said suit in Item Nos.1,2,3 of A schedule therein.
It is mentioned as follows:
Defendant No.2 is P.V.Rammohan Choudary, aged 48 years, defendant No.3 is P.V.Satyanarayana Choudhary, aged 42 years and defendant No.4 is P.V.Ravindranath Choudary aged 36 years. Item Nos.1,2,3 are 10-32 acres in Sy.No.210-1, 6-75 taram, 7-98 acres, 4-00 taram in Sy.No.210-2 and 34-45 acres 17-25 taram in Sy.No.212-2.
That plaint items 1, 2, 3 of A schedule belong to defendants 2, 3, 4 respectively and therefore, plaintiffs and defendant No.7 have no right in D schedule of properties.
30.It is important to note that in the schedule of properties movables and immovable are given in four schedules. A and B schedule contains only immovable properties. A schedule contain properties located at Anantapur and Kalyandurg,
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Nuthimadugu village and Karthanaparthy village, Papampet village. B schedule of properties are shown to be located at Dharmavaram municipal limits. C schedule properties is shares, gold, paddy, etc. D schedule property is buses, tractors, etc. C and
D schedule of properties contain only movables. It is important to note that it is mentioned that out of 6 items in D schedule, item No.4, 5, 6 are not available and item
No.1 to 3 buses belong to defendants No.2,3 and 4 respectively. There is also a mention regarding some of A schedule properties. There are 50 items in schedule A which are agricultural lands as well as houses. It is mentioned that half share is given in some of the items to plaintiff and defendant No.7 with rights in well. It also recites that excluding those properties the remaining A schedule properties should be enjoyed absolutely by defendants 1 to 6. Most importantly, in said Decree, D2, D4 and 1st plaintiff herein were mentioned as owners of some properties in their own right having got in partition.
31.Ex.B36 is filed as original family settlement deed dated 26-04-1992, along with
English translation. This was between Puttamma W/o Late P.V.Choudhary and
P.V.Ram Mohan Choudhary, P.V.Satyanarayana Choudhary, P.V.Srinivas Choudary and
P.V.Gopal. It recites that P.V.Ram Mohan Choudary and P.V.Satyanarayana Choudary divided during January 1963. Others were living under the guardianship of their father
P.V. Choudary, that during 1963 parties 4, 5 and 6 i.e. P.V.Ravindranath Choudary,
P.V.Srinivas Choudary and P.V.Gopal were minors and due to some reasons some of the properties were not divided and on the death of their father elders decided for recording the settlement and they have reduced into writing the family settlement with regard to the properties by dividing before the elders and relatives, that the movable and immovable properties were divided earlier and are being enjoyed as per the arrangement.
32.The document also recites that - Puttamma was given house bearing door
No.2/6 in the limits of Nuthimadugu village and 700 shares out of 1200 shares in
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Super Spinning Mills in Anantapur. B schedule belongs to P.V.Ram Mohan Choudary.
Item No.1 is lands situated at Nuthimadugu village in Sy.Nos.200/2A 5-15 acres, 200/B 10-00 acres, 200/2C 10-00 acres, 200/1B2 2-87 acres, 210/1 10-32 acres, 210/2 7-98 acres, 211/1 2-51 acres, 211/2 10-00 acres, 211/1A 10-00 and 1-75 acres and they are Sarkar Kushki in Nuthimadugu village. The lands in Sy. Nos.191/1, 190/1, 190/2, 190/3, 190/4 and 190/5 total admeasuring 29-50 acres out of total land of 80-93 acres.
Half share to P.V.Ram Mohan Choudrary and half share to P.V.Ravindranath Choudary with right in Well current motor, Sy.No.199 leaving the bore space excluding the bore well motor, pipes, etc., 5 cents, half share to P.V.Ravindranath Choudary and half share to Ram Mohan Choudary. Lands in Sy.No.56/1 1-34 acres, Sy.No.46/6 1-37 acres
Sarkar Khuski, lands in Sy.No.39/5 1-34 acres, 39/6 1-37 acres, 39/7 1-34 acres, 54/1A 1-37 acres, 55/1A 1-34 acres and 40/3 1-37 acres i.e. entire 10 acres (Note: English translation gives the extent of each survey number which is not available in the original Telugu document). Total 10 acres belong to Ademma W/o P.V.Ram Mohan
Choudary and it belongs to Ademma and her progeny with all rights and other sharers do not have any right.
33.The document further gives particulars of one more property as - Plot No.13 in
Ward No.7, Block-20, TS No.2035 in an extent of 10 cents, own plot admeasuring 10 cents in the given boundaries of Sy.No.2035, Ward No.7, Block-20, house in open land at Nuthimadugu village purchased along with Avula Bheemappa within the given boundaries in Sy.No.200/1A. Sy.No.178 approximately admeasuring 7-00 acres,
Sy.No.223 approximately admeasuring 9-50 acres, bus route to Chalikera, 1 to 100 shares of Super Spinning Mills, APA 2567 of Kalyandurg town service belonging to
Anil.
34.The document next gives the particulars of next sharer as - C schedule property belonging to the share of P.V.Satyanarayana Choudary at Nuthimadugu village i.e.
land in Sy.No.212/2 admeasuring 34-43 acres paiki east side 17-23 acres with well and
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half right in the well water and pump and motor pipe line. Sy.No.241/1a nd 2, 327/1 and 2 admeasuring 15-00 acres. Sy.No.178 part approximately 7-00 acres. Sy.No.223 approximately administrative 9-50 acres. House located in Sy.No.200/1A within the given boundaries. The property at Kalyandurg 5 cents within the given boundaries.
Sy.No.95/1B 46 cents. Plot at Jubilee Hills, Hyderabad, house of 600 Sq Yd i.e. 300
Sq Yd. Land at Nuthimadugu village in an extent of 35-27 acres in Sy.No.199 (part).
Land in Sy.No.212/2 approximately 3-00 acres by the side of grave of P.V.Choudary along with bus route to Rayadurgam and Dharmavaram, 100 to 200 shares of Super
Spinning Mills.
35.Nextly, the share of another sharer is given as - D schedule of property belonging to the share of 4th party P.V.Ravindranath Choudary i.e. agricultural land situated at Nuthimadugu village in Sy.Nos.200/A, 5-15 acres, 200/2B, 10-00 acres.
200/2C 10-00 acres, 200/1B-2 2-87 acres, 210/1 10-32 acres, 210/2 7-90 acres, 211/1 2-51 acres, 211/2 10-00 acres, 200/1A 10-00 acres, 191/1, 190/1 to 5 out of 29-50 acres Sarkar Kushki, out of total extent of 80-93 acres half share to P.V.Ravindranath
Choudary and half share to P.V.Rammohan Choudary. Sy.No.178 40-73 acres after excluding land given to Govindu, Sannappa, tank land 1/5th share approximately 7-00 acres. Sy.No.223 after excluding land given to Govindu and Sannappa and 1/5th share to each and big house in the village. Half belongs to P.V.Gopal and half allotted to
P.V.Ravindranath Choudary. Venkateshwara Picture Palace situated at Kalyandurg town, the family has 1/4th share and in that half share i.e. 1/8th share to P.V.Srinivas
Choudary and 1/8th share to P.V.Ravindranath Choudary. Open land by the side of the house to T.Venkatesh with Horse House, car shed. Half share to P.V.Ravindranath
Choudary and half share to P.V.Gopal. The details of movables earlier divided, tractor and pillar implements. 200 to 300 shares i.e. 100 shares in Super Spinning Mills in
Anantapur. 3 ½ cents of land in TS No.3133 after leaving the half share to P.V.Srinivas
Choudary, Sy.No.199 (part) 5 cents at Nuthimadugu village and remaining half share belongs to P.V.Ram Mohan Choudary with fixed motor and pipes.
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36.Regarding E Schedule property, the documents states that - E schedule of property belongs to 5th party P.V.Srinivas Choudary. Land in Sy.No.199 (part) approximately 3-00 acres with half share in motor, pipe lines, Sy.No.174 (part) approximately 7-00 acres after excluding land given to Govind and Sannapa and the tank land 1/5th share. Sy.No.223 after excluding the share of Sannapa and Govind 1/5th share in 47-96 acres. Sy.No.214/1 and 2, Sy.No.327/1 and 2, Sy.No.325/1 and 2 and Sy.No.326/1 total admeasuring 15-00 acres. In these survey numbers 15-00 acres were given to P.V.Satyanarayana Choudary and in the remaining 25-00 acres half share to P.V.Satyanarayana Choudary and half share to P.V.Gopal. Open land at
Nuthimadugu village in the given boundaries. Land at Kanaparthy Sy.No.52/2 admeasuring 1-30 acres, half share at Kalyandurg village. Venkateshwara Picture
Palace, the family has 1/4th right i.e. 1/8th share to P.V.Ravindranath Choudary and 1/8th share to P.V.Srinivas Choudary. At Kotha Cheruvu two houses to P.V.Srinivas
Choudary which are his own not connected to other family members. Earlier divided property shares 300 to 400 in Super Spinning Mills.
37.Regarding the share of next sharer, it states that - F schedule of property belonging to P.V.Gopal at Nuthimadugu village in Sy.No.199 (part) admeasuring 35-27 acres excluding 3-00 acres of land with right in Well in remaining share of land 35-27 acres to P.V.Gopal and remaining half share to P.V.Srinivas Choudary with right in motor and pipeline. Land in Sy.No.178 after excluding land given to Govind and
Sannapa and tank bed land approximately 1/5th share in 7-00 acres. Sy.No.223 after excluding land given to Sannapa and Govind 1/5th share in land admeasuring 47-96 acres. Lands in Sy.Nos.214/1, 214/2, 327/1, 327/2, 325/1, 325/2, 326/1, after excluding 15-00 acres given to P.V.Satyanarayana Choudary in the remaining extent of 25-00 acres, half share to P.V.Gopal and half share to P.V.Srinivas Choudary. A house in
Anantapur bearing Door No.76/188 in in Sy.No.7 within the given boundaries. House at Nuthimadugu village within the given boundaries. Half share is given to
P.V.Ravindranath Choudary and half share is given to P.V.Gopal. The property situated
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at Kakakalapalli village in Sy.No.95/1/B after excluding 46 cents given to
P.V.Satyanarayana Choudary and 1-00 acre to Lalithamma W/o C.Chalapathi remaining 2-91 acres belong to P.V.Gopal. 100 shares in Super Spinning Mills i.e.
from 400-500 number shares.
38.Of G Schedule, it recites that - G Schedule of property comprises of land purchased as co owners at Nuthimadugu village. 2-90 acres. Sy.No.51 after excluding land given to Sannapa and Govind remaining 1-22 acres total admeasuring 4-12 acres equally belong to P.V.Ram Mohan Choudary and P.v.Ravindranath Choudary. 1-25 acres of Mangamma Bavi garugu belong to P.V.Satyanarayana Choudray. Sy.No.199 belongs to P.v.Ram Mohan Choudary and P.V.Satyanarayana Choudary to have equal rights. The property at Ashok Nagar, Anantapur in TS No.2133 after excluding 18 cents over land and house in Door No.12/57-A given by their father to Lalithamma.
Lalithamma will have entire rights in that property. That the properties are being enjoyed by the respective share holders, that the properties including house are being enjoyed by the respective share holders. Ex.B36 is also shown to have been signed by
P.V.Puttamma and and her 5 sons and that it was also attested by J.Ramaiah and
K.Chalapathi. Admittedly, K. Chalapathi is none other than the husband of D6 and D6 pleaded ignorance of any such attestaton by her husband.
39.Ex.B37 is CC of registered partition deed which is already marked as Ex.B10.
Ex.B38 is filed as registered sale deed dated document No.9881/1985 dated 19-12- 1985. As per this document, P.V.Ram Mohan Choudary R/o 7-188, Court Road,
Anantapur purchased plot No.13 in TS No.2035 in an extent of 10 cents. The date of this document is 19-12-1985. Ex.B58 is filed by defendant No.4 as the agreement of sale entered into between A.Venkata Chalapathi and P.V.Ram Mohan Choudary on 25- 03-1983, in respect of premises No.3 and 4 Plot No.13 ward No.3 (old) 5 (new) and 7 (present) in TS No.479 (old) 2035 (new) in an extent of 10 cents. According to defendant No.6, this 10 cents property was purchased by their father, but in the name
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of P.V.Ram Mohan Choudary defendant No.4 and thus, it is to be considered only as joint family property and not as individual property of D4.
40.Defendant No.4 specifically contends that this agreement of sale Ex.B58 culminated into Ex.B38 registered sale deed, that Ex.B59 to B63, B67 to B73 which is the correspondence between the vendor A.V.Chalapathi and the vendee P.V.Ram
Mohan Choudary during the years 1983-85 clearly show that it is the self acquired property of the vendee P.V.Ram Mohan Choudary (defendant No.4).
41.As can be gathered from the contents Ex.B58 and these letters, the agreement of sale was entered into only between A.V.Chalapathi and defendant No.4 where under defendant No.4 agreed to purchase the property for a particular sale consideration, that defendant No.4 was ready and willing to pay the sale consideration and also paid sale consideration, that A.V.Chalapathi then residing at Visakhapatnam was not coming forward to register the document and after much correspondence and many demands of defendant No.4, the vendor executed the registered sale deed marked as Ex.B38
dated 19-12-1985. D4 also got marked Ex.B39. It is an endorsement given by the
Commissioner, Anantapur Municipality of mutation proceedings dated 13-04-1989 as per which the property in assessment No.941 was mutated from the name of
A.Venkatachalapathi to the name of P.V.Ram Mohan Choudary.
42.Ex.B64 to B66 are filed as diary notes of P.V.Choudary filed by defendant No.4
dated 30-06-1994, 11-10-1994 and 15-10-1994. As per this diary notes, a note was
made by Late P.V.Choudary of payment of amount for 11-60 cents in the name of his son-in-law Chalapathi on 11th Thursday. It also records that stamp fee is Rs.450/- and the cost of the land is Rs.15,000/- and it is registered in the name of K.V.Chalapathi.
These notes are filed by D4 to support his claim that the house plot and house situated at Court Road Ananatapur claimed as their own property by his sister D6 and her husband KV Chalapathi are not their property, but the property given by their father only. These diary notes are denied by D6.
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43.It was suggested to DW4 who is the son of defendant No.4 that all these documents are fabricated documents. DW4 denied the same. I do not see any reason to disbelieve these documents. They are proper original postal letters with postal seals and address and it is exchange of correspondence between the vendor A.V.Chalapathi and the vendee P.V.Ram Mohan Choudary. The tenor of the documents show that the property was purchased by defendant No.4 as his self acquired property. Thus, plot
No.13 in TS No.2035 in an extent of 10 cents is the own property of D4.
44.Ex.B40 is tax assessment demand notice dated 10-12-2010 in respect of
H.No.7-274 issued in the name of P.V.Ram Mohan Choudary S/o P.V. Choudary.
Ex.B41 is property tax payment receipt dated 26-12-2010 for house No.7-274. Ex.B42 is another special notice for property tax issued in respect of H.No.7-274 addressed to
P.V. Choudary S/o Ramappa and P.V.Ram Mohan Choudary dated 21-10-2011. Ex.B43 is another property tax receipt dated 23-12-2011 issued in the name of P.V. Choudary and P.V.Ram Mohan Choudary in respect of H.No.7-274. Ex.B44 is another tax receipt issued in the name of P.V. Choudary and P.V.Ram Mohan Choudary dated 16-11-2012 in respect of H.No.7-274. Ex.B45 is also property tax receipt dated 25-03-2013 issued in the name of P.V. Choudary and P.V.Ram Mohan Choudary for house No.7-274.
Ex.B46 and B47 are also receipts issued by Anantapur municipality dated 29-3-2015 and 31-03-2018 for same house number in the name of P.V.Choudary and P.V.Ram
Mohan Choudary.
45.Ex.B48 is filed as certified copy of document No.9808/1984 dated 15-10-1984 as per which P.V. Choudary gifted 11 cents in TS.No.2133 Ward No.4 (old) 8 (new) and 12 (present). The boundaries of this plot gifted are East: In the own plot, South:
Road, West: My own plot and East: Plot sold earlier to others. Ex.B49 is registered gift deed document No.9689/1984 under which P.V. Choudary S/o Ramappa gifted the property in favour of K.Chalapathi son-in-law being husband of Lalithamma and this property is bounded on East: In the same plot your own site, South: Road, West: My
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own plot and North: Earlier sold plot to others. Thus, it is very important to note that as per these two gift deeds, it is seen that P.V. Choudary gifted 22 cents of plot in
Sy.No.213 to his son-in-law and daughter.
46.Ex.B50 is certified copy of registered Will dated 10-03-1964. Defendant No.4 filed this document to show that his wife Ademma got some property and he got some property under this Will deed and it is thus, their own property. As per this document, the testator Obuseshaiah who is the maternal grandfather of P.V.Ram Mohan Choudary bequeathed agricultural lands situated at Bheemunikunte village, Thumkur district,
Mysore, houses situated at Bheemunikunta village within the given boundaries, 5 ankanas of residential house, another 5 ankanas terrace house, on the north side along with his house with buffaloes and covered in the given boundaries with grass area and also some vacant land to Ram Mohan Choudary, Satyanarayana Choudary,
Ravindranath, Sudheer, Srinivasulu and Gopala Krishna who are sons of his nephew
Venkateshwara Choudary and his 6th daughter Puttamma. These properties also include two houses situated at Bheemunikunta village within the given boundaries in an extent of 5 ankanas each, another house within the given boundaries, vacant land within the given boundaries, vacant land within the given boundaries. The properties given are as below:
Survey No. LandAcreExtent 13Khushki 4-239-00In the land along with well and fruit trees 46-1Khushki 19-185-50Ithamanla patta land along with well and fruit trees 57-1Khushki 30-115-50Guntla fields 23Wet 3-057-50Source of tank 24-2Khushki 0-270-12 In these lands along with fruit trees 118Khushki 5-001-50 117Khushki 5-001-50 69-7Khushki 6-001-50
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47.Ex.B51 is another registered Will dated 14-05-1974. Testator is Narsimhappa a bachelor. Under this Will Deed, the testator bequeathed the properties in favour of
P.Anil Kumar and P.Hari Krishna sons of H.Rama Rao Chowdary and PV Ram Mohan
Choudary. The property bequeathed is land in Sy.No.84/1 in an extent of 3-08 acres, total 38-12 HS 1.246 full, a house in municipal door No.34 in ward No.2 at
Nuthimadugu village within the given boundaries, open land within the given boundaries. This is another Will Deed where D4 claims to have acquired his own property and which is not one he got from his father.
48.Ex.B55 is certified copy of plaint in OS No.113/2001. It is a fact that this suit was between only two parties i.e. defendant No.1 herein and she as plaintiff filed suit for partition against defendant No.2 herein as sole defendant to divide the present suit schedule A 7 B properties together admeasuring 600 Sq Yd into two equal shares and to allot one share and separate possession thereof by metes and bounds to each of the two shareholders. Defendants No.1 and 2 in the present suit claim that a compromise decree was entered into in said suit dividing the property, that mutation was duly effected as per the compromise in respect of the present suit schedule And B property.
49.Ex.B56 is agreement of sale dated 04-08-1976 executed by G.Laxmi Narsaiah,
G.Narasimha, G.Venkatappa Shastry and G.Subramanyam in favour of Eswarappa in respect of property in an extent of Ac.2-00 in Sy No.55/1 part and 54/1 part of
Papampet village, Ananthapuram. This document is filed by defendant No.4 in support of his case that this property does not belong to the joint family and that it was purchased by defendant No.4’s wife Ademma with her own money. Ex.B57 is the original payment receipt issued in favour of Ademma. There is no evidence from the defendants to show that Ademma blended this property with the jointly family properies and that is considered as the property of he family.
50.Ex.B74 is filed as certified copy of Partnership Deed of firm and registration of firm of Venkateshwara Picture Palace issued by the Registrar. As per this certificate,
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the firm under the name and style of Venkateshwara Picture Palace was registered on 19-04-2014 in the name of of its partners of whom first and second plaintiff are two of the partners. The Partnership deed also recites that it is appended with Form-A under
Section 59 of Indian Partnership Act 1932 R/w Rule (5). The Deed of partnership also mentions that the partnership was effected much earlier, but it was recorded on the date of entering into partnership.
51.Ex.B75 is filed as 1-B ROR in respect of 5-00 acres in Sy.No.223 showing
Lalithamma W/o Chalapathi as pattadar and the nature of patta is mentioned as succession. Ex.B76 is filed as 1-B ROR in the name of Susmitha D/o Chalapathi for 4- 5 Acres in Sy.No.223. Ex.B77 is 1-B ROR in the name of Susmitha D/o Chalapathi for an extent of 4-5 acres in Sy.No.223. Ex.B78 is another 1-B ROR same as Ex.B77.
Ex.B79 is filed as pahani dated 05-07-2019. As per this pahani, the pattadar in respect of Sy.No.223 was P.V.Srinivas Choudary S/o P.V.Choudary, recorded as pattadar and possessor in an extent of Ac 9-68 cents. It is to be noted that PV Srinivas Choudhary is none other than the 2nd plaintiff who after filing the suit, did not chose to contest the case.
52.Further, Lalithamma W/o Chalapathi is recorded as pattadar and possessor of an extent of 5-00 acres and Sushmita D/o Chalapathi is recorded as pattadar in respect of
Ac 04-5 in Sy.No.223 at Nuthimadugu village. According to defendant No.4, the land in Sy. No.223 belongs to their father and that part of it was given by their father to D6 by way of registered Gift Deed. Thus, D6 claimed that this land is their father’s property and that his father gifted it as a share to his daughter defendant No.6.
learned counsel for D4 and D9 to D11 vehemently submitted that if fresh partitition is to be made as claimed by D6, the property given to D6 and her husband which she allegedly did not show in the Counter claim should also be included.
53.Ex.B80 is filed as CC of gift settlement deed document No.4161/1997 dated 18- 06-1997 as per which defendant No.4 Ram Mohan Choudary gifted Ac 1-90 Cents in
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Sy.No.39/6 in favour of his two sons. Thus, as per this document, D4 gifted landed property to his two minor sons 10 years earlier to the present suit under a registered transaction and these transactions are not challenged by D6. Ex.B81 is filed as CC of registered sale deed document No.7180/1979 dated 21-11-1979, as per which the then two minor sons of defendant No.4 P.V.Anil Kumar and P.V.Hari Krishna represented by their guardian and mother P.V.Ademma purchased Ac 1-33 Cents in Sy.No.39/6 of
Papampet village.
54.Ex.B82 is certified copy of registered sale deed document No.9517/1983 dated 23-11-1983 under which the two minor sons of P.V. Ram Mohan Choudary viz., Anil
Kumar and Hari Krishna represented by their mother P.V.Ademma are shown to have purchased 70 cents of land in Sy.No.39/6 for valid sale consideration. Defendant No.4 claims that this property was purchased with her own money by Ademma in the name of two minor sons. It is the claim of D6 that the land in Sy. No.39/5, 6 & 7, Sy.
No.54/1A, 55/1A, 40/3 admeasuring Ac 10-09 cents was purchased in the name of
D4 and his family members with the funds generated from the sale of joint family properties in Sy. No.16 and 28 at Papampet village and and other jiont family properties.
55.Ex.B83 is filed as statement of P.V.Choudary made before the Special Deputy
Tahasildar, Land Reforms, Kalyandurg on 27-01-1975 giving the excess land held by him and his sons at Nuthimadugu and Karthanaparthy villages. A statement is made in the end that he is the only son of his parents and he has no brothers and sisters, that 15-00 acres in Sy.No.223 was given in Bhoodan Yagnam and the remaining lands existing are with them, that some land was given to his daughter Akkamma in connection with her marriage, that some land was given to his cousin Venkatappa and his daughter Laxmamma in connection with her marriage, that some land in his name at Kartanaparthi village is actually in possession of another person, that 5-00 acres in
Sy.No.16 paiki land of P.V.Ram Mohan is existing in his name his elder son Ram
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Mohan Choudary, himself and his son got equal right in it.
56.It is important to note that notice declares the declaration, the declarant P.V.
Choudary states that the land belongs to the joint family property, that he is the only son who inherited the properties, that only himself and his sons are the shareholders of the property. He gives the names of his 10 children i.e. 6 sons and 4 daughters viz.,
Ram Mohan, Akkamma, Rama Laxmamma, Satyanarayana, Venkata Laxmamma,
Ravindranath, Sudheer, Lalitamma, Srinivasulu, Gopala Krishna. Similar statement is given by P.V.Ram Mohan Choudary which is marked Ex.B86. Ex.B84 is deposition of
P.V. Choudary given before the Land Reforms Tribunal, Dharmavaram and at that time he was calling himself as MLA on 13-05-1976. Ex.B85 is filed as sale deed executed by P.V.Ademma in favour of the purchaser Vithaldas and another person in respect of 5.00 hectors of land in Sy.No.162 at Papampet village.
57.Ex.B86 is declaration made by P.V.Ram Mohan Choudary. It is specifically stated that property is ancestral property. Particulars are given of the extent of the share. It is also stated that the family is having half share in the property jointly held with the blood relation Vankatappa. A mention is made that the land property belongs to combined family, that with income derived from such property all the lands are purchased, that himself, his brother and his father submitted declarations individually.
He further stated that himself and his father possess land in Sy.No.16 of Papamapally village and an extent of 5-00 acres is in the name of his wife and it is the property of his wife, that himself, his father and younger brother are residing as one family and are jointly enjoying the properties.
58.It is seen from the Counter claim of D6 that they sought for partition of 19 items including the plaint schedule plot at Jubilee Hills, Hyderabad. However, in their arguments learned counsel for D6 submitted that they are confining to only 5 Items of properties which are -
1. Ac 93-93 at Nuthimadugu village;
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2. 752.71 Sq Yd in TS No.2035 at Court Road, Anantapuramu Town;
3. Building Municipal No.7.725 in land of 444.88 Sq Yd in Court Road, Anantapuram Town;
4. 25% share in Cinema Theatre called Sri Venkateswara Picture Palace, in Kalyandurgam Town.
5. (a) 1200 shares in Super Spinning Mills and (b) 2805 shares in Private Ltd.
59.As per written statement and Counter Claim of D6,Item No.1 consists of lands at Nuthimadugu village in several survey numbers in an extent of Ac.263-72 cents and now they are confining to only Ac 93-93 at this village. However, the written submissions do not give the survey numbers in which this Ac 93-93 is shown to be located.
60.Item No.2 is land admeasuring 752.71 Sq Yd in TS No.2035 Ward No.7, Block
No.20 with thatched sheds in Court Road, Anantapur. Item No.3 is building with ground and first floor in an extent of 444-88 Sq Yd with door No.7/275, Court Road.
It is already seen that these houses at Court road are in the name of 3rd plaintiff PV
Gopal and D4. Defendant No.4 claims that it is his self acquired property purchased under Ex.B38 registered sale deed as evidenced by Ex.B38 and B58 agreement of sale,
Ex.B59 to B63, B67 to B73 letters. It is observed above that this property i.e. 10 Cents land at Court Road was purchased by D4 in his name from AV Chalapathi and it is his self acquired property.
61.Item No.4 claimed in the Counter Claim is Venkateshwara Picture Palace with land and structures in an extent of 4491.31 Sq Yd is shown to have been already partitioned. However, in the written submissions, this property is shown as 25% share in the Cinema Theater. There is no record to show that the family originally had 25 % share in this Cinema theater. Presently, only two brothers i.e. plaintiff No.1 and 2 are having share along with the other shareholders as evidenced by Ex.B74 CC of certificate of registration of partnership deed of the year 2014.
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62.Item No.5 in the written submission is shown as 1200 shares in Super Spinning and 2805 shares in Private Ltd. Neither of the parties filed any document in respect of these shares. Regarding the shares of Super Spinning Mills, defendant No.4 contend that they were already divided among all the brothers and their mother. No particulars are given by either of the parties. The availability of these shares for partition has to be gathered from the oral evidence on record.
63.At this stage it is also very important to note that as per the Compromise Decree in OS 123 of 1986 dt. 18-08-1989, half of land in Sy.No.223 was allotted to Govind
Chowdary in OS No.123/1986 and the remaining land was partitioned amount plaintiffs and defendant. It is seen that 1-B ROR is filed by defendant No.4 and it shows that Ac 9.68 cents is in the name of defendant No.4 P.V.Ram Mohan Choudary vide Ex.B54 pahani and Adangal and Ac 5-00 is shown in the name of wife of
Chalapathi viz., Lalithamma. Evidently, this property is not claimed as joint family property in the counter claim of D6. Defendant No.6 has to explain about the acquisition of this property, as originally it was shown as joint family property in the
Compromise Decree and later as per the I-B RORs, the property is shown in different extents in the names D6, P2 and D4.
64.Coming to the oral evidence on record, defendant No.1 examined herself as
DW1. Her chief affidavit is reiteration of the facts pleaded in the written statement.
She further averred that the registered partition deed dated 08-12-2013 is not binding on her as she is not made party to said partition deed. She further averred that the partition deed shows A schedule property as partible property, but the partition deed excludes her in respect of other properties which is bad in law. She affirmed that in all properties left behind by P.V. Chouwdary, all the parties have a share.
65.DW1 was thoroughly cross examined by the learned counsel for defendant
No.2. Defendant No.2 put forth his case to DW1. It is to be noted that as per D2 only the plot at Jubilee Hills is to be partitioned and it was the self acquired property of his
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father and their father gave it to himself and his sister D1 in equal shares. DW1 admitted that her father purchased both plaint A and B schedule properties, that her father executed Will in favour of herself and her younger brother Satyanarayana
Choudary giving equal share in plaint A and B schedule of properties, that her brothers and sisters executed a document giving complete rights over plaint A and B schedule properties to her and her younger brother Satyanarayana Choudary.
66.DW1 further stated that in the year 2001, she filed partition suit against defendant No.2 seeking partition of present suit A and B schedule of properties, that a compromise decree was passed allotting her brother with front half share and other half was allotted to her and 10 feet vacant site was kept for her passage, that her brothers are not residing in Hyderabad, that herself and her children are protecting the property, that she executed gift deed under Ex.B4 in favour of her sons in respect of her 300 Sq Yd property vide document No.1609/2012 dated 23-04-2012. She further stated that her brothers and sisters have filed this case to harass her and her younger brother. DW1 was not cross examined by defendant No.3, defendant No.5 and plaintiffs 1 to 3 and was cross-examined only by D2 and D6.
67.In her cross examination by learned counsel for defendant No.6, DW1 answered that the properties of P.V.Choudary were not partitioned till date, that defendant No.6 filed written statement and counter claim for partition of the properties of P.V. Choudary. She further stated that her father gifted her sister Lalitha 60 cents of site in which her sister constructed house and that house belongs to defendant No.6 only. She admitted that suit schedule property (plot at Jubilee Hills) belong to her father P.V. Choudary, but affirmed in her cross examination that half share in that was given to her and half share was given to her brother defendant No.2.
68.Regarding Will deed, DW1 answered that that she did not see any Will deed.
She denied that in collusion with Satyanarayana Choudary (defendant No.2 herein) she filed suit OS No.113/2000. She denied that Ex.B4 gift settlement deed was brought
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into existence only to knock away the properties of P.V.Choudary. She further stated that house at Ashok Nagar, Ananthapur belongs to defendant No.6, that they did not include that property in the suit. She admitted that all the legal heirs of P.V. Choudary have equal share in all the properties left by him, except 300 Sq Yd which was gifted to her by her father P.V. Choudary and excluding that property remaining properties are to be partitioned.
69.Interestingly, having stated so, learned counsel for defendant No.1 filed written arguments and reply written arguments seeking to dismiss the suit, with specific statement that it was stated in the written arguments that the suit for partition of A and
B schedule of properties is illegal as already it was divided equally in between defendant No.1 and 2. It is also stated that plaintiffs suppressed about the other properties of P.V.Choudary, that plaintiffs sold some of the properties to third parties by admitting that partition took place in the year 1994 and in view of the same, plaintiffs are not entitled to seek partition of the properties. As to what are those properties, the written arguments is silent and neither the written statement of defendant No.1 is specific.
70.It is further submitted by defendant No.1 counsel that plaintiffs, defendant No.2 and 4 are in exclusive possession and enjoyment of the respective shares as allotted to them in the partition that took place in the year 1994 and that all the shareholders are in exclusive possession and enjoyment of their respective shares for more than 26 years and there is no need of further partition of the properties.
71.Defendant No.4 filed his chief affidavit, the affidavit was confirmed as chief examination of DW3 and Ex.B33 to B53 were marked through him, but he died during the pendency of the suit and as such he could not be cross examined. Son of D4 is examined as DW4. Prior to discussing his evidence, evidence of defendant No.6 who examined herself as DW2 has to be appreciated. The chief affidavit of DW2 is reiteration of the facts pleaded in the counter claim. Important statements are made by
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DW2 in her cross examination in respect of A and B schedule of properties of the plaint and other properties.
72.Regarding schedule A and B properties, DW3 deposed that her sister defendant
No.1 viz., Ramalaxmi has been residing in Hyderabad since long back from 40 years, that DW3 used to visit her sister’s house at Hyderabad, that she has knowledge regarding suit A schedule property which belongs to her sister (defendant No.1 herein), that she has knowledge regarding other properties with regard to possession except ‘A’ schedule property, that she has knowledge about ‘A’ schedule property being purchased by her sister/defendant No.1 from their late father. DW2 admitted that defendant No.1 is in possession of A schedule property, even during the life time of their father. She also admitted that she is claiming right of partition in other properties shown in the counter claim, except property claimed by defendant No.1. She pleaded ignorance as to whether defendant No.1 is having right to claim over schedule A property. She stated that she has exclusive right over the property at Ashok Nagar,
Anantapur district and that her sister/defendant No.1 is having exclusive right over ‘A’ schedule property.
73.DW2 further deposed that plaint schedule B property is in possession of defendant No.2 and it belongs to her father, that she do not know about the partition between defendant No.1 and 2 and whether defendant No.2 has been enjoying schedule B property of plaint after the death of their father, after partition that took place between defendant No.1 and 2. She further stated that she do not know whether schedule B property of plaint fell to the share of defendant No.2 in the partition that took place between defendant No.2 and his brothers.
74.some of the important statements in the cross examination of DW2 (D6) done by the learned counsel for defendant No.4 are extracted here as they cannot be better explained. she deposed as follows:
“…...My marriage was performed in grand manner and at the time of my
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marriage, my parents given me ten tolas of gold. It is not true to say that at the time of my marriage, my parents had given Rs.30,000/- in cash. At the time of my marriage, my parents given costly sarees. It is not true to say as my parents has given sufficiently than what is my share and I did not demand for share during the life time of my father. Witness adds : I am making demand now.
…...I do not know whether during the life time of my father, there was a family partition in the year 1965, witness adds that no such partition took place. I know what are the properties belonging to my father, and these properties were self acquired by my father. I know that Sri.Govind Choudhary son of my paternal uncle, had filed OS No.123/1986 on the file of Hon’ble Principal Subordinate Judge, Ananthpur District against my father and my brothers and others. I do not remember for what relief the suit was filed and about the judgment passed in the said suit. I do not remember whether suit was filed for partition and decree was passed partitioning the properties…. I do not know whether after the death of my father, my mother and brothers by taking into consideration of daughter’s interest also, had effected the partition of properties on 26-04-1992. I do not know that my husband participated in the family partition, as I was sick at that time, I cannot identify the signatures on the document shown to me as family partition deed dated 26-04-1992 as the signatures are in English….In the witness column, the signature does not belong to my husband. My husband signs in English….It is not true to say that I was provided with one acre of land at Kakkalapally village, Anantapur district in Sy.No.95/1-B in the aforesaid document apart from 18 cents of land with house provided by my father. No such partition was effected in the year 1992 but the parties have been in possession though these properties are joint properties.
…..I do not know what is written in the aforesaid document shown to me. I know that some properties were kept in out names i.e. myself and my daughter by my brother Ravindranath Choudary and he is receiving the income….”
75.When questioned about gift of Ac 11-60 cents to her husband under gift deed
dated 15-10-1984, DW2 pleaded ignorance. She also pleaded ignorance of her
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husband in turn gifting said property to their daughter. She denied that her father has given house along with land totally admeasuring 18 cents in Door No.12-275/A,
Ashok Nagar, Anantapur. When asked about the acquisition of said house, DW2 again pleaded ignorance and stated that her husband knows about it, but she is not going to examine her husband. She got marked gift deed of her son as Ex.B16. Ex.B16 is certified copy of registered settlement deed document No.2600/2009 dated 30-03- 2009. The donor is Ch.Kalyan Chakravarthy and the donee is K.Lalitha for plot in
Door No.12/275-A new No.12-1-964 in TS No.2133, Ward No.4 (old), new No.8 and present No.12 in an extent A.C.16.95, A.C.7.00, A.C.0.20, H.S.0.080 with house therein. Ex.B17 to B24 are filed as property tax payment receipts paid by K.Lalitha
W/o Chalapathi in respect of H.No.12-1-964 with assignment No.11095. Ex.B25 to
B32 are filed as property tax payment receipts in the name of C.Kalyanchakravarthi for the same house property as under Ex.B17 to B24. It is to be noted that D2 had filed
Diary notes said to be of his father PV Choudhary and Ex.B66 is one such note of reference. They are already discussed above.
76.Ex.B64 to B66 are filed as diary notes of P.V.Choudary filed by defendant No.4
dated 30-06-1994, 11-10-1994 and 15-10-1994. As per this diary notes, a note was
made by Late P.V.Choudary of payment of amount for 11-60 cents in the name of his son-in-law Chalapathi on 11th Thursday. It also records that stamp fee is Rs.450/- and the cost of the land is Rs.15,000/- and it is registered in the name of K.V.Chalapathi.
These notes are filed by D4 to support his claim that the house plot and house situated at Court Road Ananatapur claimed as their own property by his sister D6 and her husband KV Chalapathi are not their property, but the property given by their father only. These diary notes are denied by D6.
77.Coming to further cross-examination of DW2, She deposed that she do not know whether during the life time of her father, there was a family partition in the year 1965. She further stated that no such partition took place and she know what are the
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properties belonging to her father and if those properties are self acquired by her father. Most importantly, DW3 states that no such partition was effected in the year 1992, but the parties have been in possession though these properties are joint properties. Thus, DW2 admits in her cross examination that the parties are in separate and exclusive possession, but states that the properties are still joint. The reason for such enjoyment of the properties by the children of late PV Choudhary must be only due to one fact and it is severance of status as joint owners. D6 might justify her statement on the ground that such arrangement of separate and exclusive possession of different properties by different parties was made for the sake of convenience and that no actual partition took place. It is to be seen that the properties are in several survey numbers in different villages and Towns and it cannot be said that such enjoyment of properties by the bothers and sisters was made only for the sake of convenience.
78.It is also important to note that when it was suggested to DW2 that there was prior partition in the year 1992, straightaway DW3 does not deny the partition deed of the year 1992. She pleads ignorance of it. She also pleads ignorance of participation of her husband in the partition proceedings and signing of her husband as witness to the document. Most importantly, the manner in which the land in Sy.No.223 is dealt is to be seen. In the declarations, land in Sy.No.223 is shown as joint family property. As seen from Ex.75 to B78 RORs, land in Sy.No.223 is recorded in the names of three persons i.e. 9-00 acres in the name of Srinivas Choudary, 5-00 acres in the name of defendant No.6 and 4-50 acres is recorded in the name of daughter of defendant No.6
Sushmita. Regarding this, DW2 when confronted with copies of these RORs, stated that she do not know what is written in the said documents, but she knows that some properties were kept in their names i.e. herself and her daughter by her brother
Ravindranath Choudary and he is receiving the income.
79.By the above statement of DW2, it is to be concluded that DW2 got knowledge that land in Sy.No.223 is being exclusively claimed by her brother Ravindranath
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Choudary. Evidently, the land in Sy.No.223 is not self acquired property of
Ravindranath Choudary and it was a joint family property. Ravindranath Choudary could have got this property exclusively only in the event of partition and only in such event, he can receive the income arising out of this property for himself. DW2 did not add as to why such arrangement was made by her brother Ravindranath Choudary i.e.
why the property was kept in the name of herself and her daughter by her brother
Ravindranath Choudary and why her brother is receiving the income from said property and why she did not question for a right or share in the property.
80.Interestingly, whenever the fact of earlier partition arose in her cross- examination, DW2 stated that she do not know. She also answered that she does not know if the partition deed was registered as per earlier partition deed between the parties vide Ex.B10 dt.08-01-2013. She stated that she did not demand for any share from her brothers till filing of the suit.When suggested that land at Papampet village belongs to her sister-in-law, DW2 denied the same. When questioned as to how her brother Satyanarayana Choudary is in possession of property at Jubilee Hills,
Hyderabad, she stated that her brother Satyanarayana Choudary is in possession of the above property. No explanation is given as to whey other brothers were excluded from the property.
81.Interestingly, regarding right of her sister D1 in Jubilee Hills property, DW2 answered that her sister Rama Lakshmi purchased the aforesaid property from her father. Significantly, it is not the case of D6 that her sister purchased part of Jubilee
Hills plot. When questioned about the suit in OS No.113/2001, DW2 again pleaded ignorance. When questioned about H.No.12-275/A, she denied that it belongs to her father. She stated that it belongs to her. When Ex.B48 document is discussed, it is seen that P.V. Choudary gifted 11 cents in TS.No.2133 to his daughter and it is also seen that a house is constructed in that land and it is assessed with H.No.12-275/A within the boundaries mentioned as house of P.V.Gopal and on one side with site of P.V.
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Choudary. This court observes that mentioning of “house of P.V.Gopal” on one side boundary and as “site of PV Choudhary” on other side boundary of H.No.12-275/A at the time of gifting this property by PV Choudhary to his son in-law/daughter D6 clearly shows by the time of gifting this property by PV Choudhary in the year 1984,
PV Gopal already has his own house at Court Road and he also has his own site and he also gifted some plot to D6 and her husband.
82.This Court observes that it is probable that the property was purchased initially by P.V.Choudary, but showing residence of P.V.Gopal as boundary of property gifted in Ex.B49 registered gift deed in favour of son-in-law K.Chalapathi in the year 1984.
and Ex.B48 registered gift deed in favor of daughter D6, clearly shows that by the year 1984 P.V.Gopal got some property purchased by his father towards his share and there is a house in it. When suggested that the properties were partitioned and mutations were also effected in respect of properties in names of her brothers and that they have been in their respective possession, DW2 again pleaded ignorance in stead of categorically denying said statement.
83.The next witness is DW4 (D11) and he is one of the legal heirs of defendant
No.4. His chief affidavit is on the lines of written statement to the counter claim of defendant No.6. DW4 was thoroughly cross examined by the learned counsel for defendant No.6. Ex.B81 & B82 were confronted to DW4 and he identified said documents and they were marked. These documents are already discussed above.
Ex.B81 is filed as CC of registered sale deed document No.7180/1979 dated 21-11- 1979 and Ex.B82 is certified copy of registered sale deed document No.9517/1983
dated 23-11-1983 as per which the then two minor sons of defendant No.4 P.V.Anil
Kumar and P.V.Hari Krishna represented by their guardian and mother P.V.Ademma purchased Ac 1-33 Cents and 70 cents of land in Sy.No.39/6 of Papampet village. It is already discussed above that D4 claims that this property was purchased with her own money by his wife Ademma in the name of their two minor sons whereas, D6 claimed
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that the land in Sy. No.39/5, 6 & 7, Sy. No.54/1A, 55/1A, 40/3 admeasuring Ac 10-09 cents at Papampet village was purchased in the name of D4 and his family members with the funds generated from the sale of joint family properties in Sy. No.16 and 28 at
Papampet village and and other jiont family properties. Significantly, D6 abandoned her claim in respect of these properties at the time of arguments as submitted in the written arguments filed on behalf of D6.
84.DW4 was also clearly questioned about the statements given by his father and his grandfather before the Land Reforms Tribunal, DW4 stated that he do not know about the contents of those statements. This Court has extensively discussed those statements above. When questioned that the declarations show their residential address
as 7/188 ( new 12/275), DW4 answered that in Ex.B80 to B82 their residential address
is shown as 7/188, Court Road, Anantapur. He added that they were in the above said address till 26-04-1992. At this stage it is also to be noted that defendant No.6 got marked caveats of the year 2013 as Ex.B5 to B9. They show address of P.V.Srinivas
Choudary as D.No.7-275, Court Road, Anantapur, address of P.V.Satyanarayana
Choudary is shown as R/o Nuthimadugu village, Kambadu Mandal, Anantapur district,
P.V.Ram Mohan Choudary address is shown as R/o D.No.6-5-720-4, Srinagar Colony,
Anantapur. It is seen that five brothers have shown different addresses and most importantly, one brother showed his address at Nuthimadugu village.
85.When questioned about the property at Ashok Nagar Anantapur, DW4 admitted that defendant No.6 is in possession of the property at Ashok Nagar, Anantapur, but the same was gifted his grandfather P.V. Choudary and that it was excluded from the suit in OS No.123/1986. It is already observed that the land on which this house
H.No.12/275-A was constructed was gifted under registered gift deed of 1984 under
Ex.B48 and B49 in favour of defendant No.6 and her husband. The line of cross- examination in respect of some properties viz., the house No.12/275/A is that they were not shown in the partition suit of the year 1986 and as such they are not joint
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family properties. It might be true that the properties not shown in the partition suit are not joint family properties, but they might be the self acquired properties of PV
Choudhary who gifted the same to his children. It is also seen from the tax receipts discussed above that they are issued in the name of P.V.Ravindranath Choudary (plaintiff No.1) S/o PV Choudhary.
86.It is also important to note that mutation proceedings show mutation only in the name of P.V.Ravindranath Choudary. It was again suggested to D4 that that property covered under Ex.B46 and B47 (tax receipts for H. No.12/275/A) pertain to husband of defendant No.6. DW4 admitted the same. Evidently, these two tax receipts Ex.B46 and B47 discussed above are also receipts issued by Anantapur municipality dated 29-3-2015 and 31-03-2018 for house number 12-274 in the name of P.V.Choudary and
P.V.Ram Mohan Choudary. It appears that DW4 was questioned about B48 and B49, the gift deed under which plot at Court road was gifted to D6 and her husband and it is also not the case of D6 that they are also claiming H.No.12-274 as their own property.
The discussion above shows that the land on which house bearing No.12/275/A was constructed belongs to P.V. Choudary, he gifted it to his son-in-law and daughter D6 on which said house was constructed.
87.When questioned about land in Sy.No.54/1, 55/1, 39/5, 39/6, 39/7, 40/3, DW4 answered that the properties covered under these survey numbers are the properties of sreedhanam of her mother who is defendant No.9 herein. Learned counsel for D6 in his arguments submitted that the burden is on D4 to prove that his mother purchased these properties with her Stridhanam, but D4, D9 to D11 did nto file any document to show such purchase and thus, it is to be held that all these properties are joint family properties. It is observed above that D4 filed some sale deed in which it is seen that property in Sy. No.39/6 was purchased in the names of the two minor sons of
Ademma. This court observes that as it is the case of D6 that the property is joint family property, burden is only on defendant No.6 who is claiming that they are joint
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family properties to show that these properties were at any point of time held as joint family properties. However, there absolutely no evidence to support said fact.
88.In the light of my above discussion, I hold that there is ample documentary and oral evidence to show that there was severance of status of the joint family of late PV
Choudhary some time prior to 1984 itself and that the 5 sons of PV Choudhary are independently and exclusively dealing with some of the properties. Such exclusive enjoyment and possession of certain properties by the 5 sons of late PV Choudhary shows that there was partition of the properties and the parties started residing separately and are enjoying the possession of their respectively properties exclusively as admitted by D6. As there was earlier partition of the properties left behind by late
PV Choudhary, question of partition of those properties does not arise.
89.Regarding the right of the daughter to claim a share in the properties left behind by their father and if any share was already given at the time of the marriages of the daughters of PV Choudhary, an observation is given above that there was already partition effected some time prior to the year 1984 and hence, no discussion arises on the right of the daughter to claim share in the joint family properties. It is also to be taken note of that D6 and her husband were also gifted some property in the year 1984 and in the earlier partition deed, it is seen that one of the daughters was given some property at the time of her marriage. Hence, at this stage nearly after twenty years
These Issues are decided accordingly against D6.
Issue No.1:
90.This Issue concerns cancellation of the Judgment and Decree in OS 113 of 2001 dt.26-06-2001. In view of the findings given in Issues No.2, 3, 7 & 8, I hold that the plaintiffs and the defendants who are sailing with the plaintiffs on this Issue are not entitled for the relief of cancellation of the Judgment and Decree dt.26-06-2001 in OS 113 of 3001 on the file of III Addl Chief Judge, CCC, Hyderabad. This Issue is decided against them.
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Issue No.4:
91.This issue concerns the jurisdiction of this Court to entertain the present partition suit. In his written statement D4 had taken the plea that all the immovable and movable properties are situated at Ananatpur District and as such the situated at
Hyderabad is not maintainable. Said objection of D4 does not stand to scrutiny. The suit of the plaintiffs is filed for immovable property located at Hyderabad. Even if all the other properties are located at Ananatapur, the court at Hyderabad will have jurisdiction to entertain the suit. Hence, I hold that the objection of D4 that this court has no territorial jurisdiction to maintain this suit is untenable. This Issue is decided against D4.
Issue No.5:
92.This Issue concerns the question if all the parties necessary for adjudication of the partition suit are joined. As rightly submitted by the learned counsel for D6 there is neither any plea nor any oral or documentary evidence as to who are the proper and necessary parties that are to be joined and in what manner their non joinder is bad.
Thus, this Issue becomes redundant and it is observed accordingly.
Issue No.6:
93.This Issue concerns the aspect of limitation. The suit is filed for partition by the three plaintiffs only for schedule A and B properties citing the cause of action as the
Judgment and Decree passed in the partition suit OS 113 of 2001 of which they allegedly came into knowledge sometime later when they demanded for partition of said property in the year 2006 & 2007. Regarding the cause of action for the counter claim of D6 who sought partition of the properties said to be joint family coparcenary properties, D6 contended that all the properties left behind by their father are to be partitioned, that she came to know about the demand for partition only on filing the suit and thus, she also sought for partition of all the properties.
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94.It is settled law that the question of limitation is a mixed question of fact and law. Admittedly, the family patriarch PV Choudhary died on 14-07-1990. According to
D6 the family continued to hold the properties joint without any division and her case is that there was no partition earlier.
95.As rightly submitted by the learned counsel for D6, the question of limitation to file a partition suit does not arise unless, it is a case where the party who is instituting the suit is shown to have been ousted from the joint possession of the property. This court further observes that ouster from joint possession is akin to plea of adverse possession and not a situation where the share in the joint property is carved out by metes and bounds and exclusive possession is enjoyed. The present suit is not one where a defence of ouster of possession is taken, rather it is a case where partition is resisted on the ground that prior partition was already effected. Thus, this is not a case where the question of limitation in filing the suit arises. This is issue is decided accordingly.
Issue No.9:
96.In view of my discussion on the above issues, the suit of the plaintiffs fails and the same is liable to be dismissed.
97.IN THE RESULT, the suit is dismissed and the counter claim of defendant No.4 is also dismissed. Each party to bear their own costs.
Dictated to the Stenographer, transcribed and typed by her, corrected and
pronounced by me in the open Court, on this the 30th day of April, 2022.
Sd/-
XXV Additional Chief Judge, City Civil Court, Hyderabad.
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APPENDIX OF EVIDENCE:
Witnesses examined: For the plaintiffs: For the defendants: NoneDW1: J.Rama Lakshmi DW2: K.Lalitha DW3: P.V.Ram Mohan Choudhary DW4: P.V.Choudary
Documents marked for the plaintiff:-Nil-
Documents marked for the defendants:
Ex B1: Receipt for Rs. 18,000/- dated 12-07-1984 issued by Sri Venkateshwara Co- Operative House Building Society Ltd., for Legislators.
Ex B2:Registered sale deed dated 21-12-1984 bearing documents No.3047/1984.
Ex B3:Receipt for Rs.12,000/- dated 21-12-1992 issued by Sri Venkateshwara Co- operative House Building Society Ltd., for Legislators.
Ex B4:Certified copy of registered Gift Settlement Deed dated 23-04-2012 bearing documents No.1609/2012.
Ex B5:Copy of Caveat petition and affidavit with advocate covering letter, dated - 01 -2013.
Ex B6:Received copy of Caveat petition and affidavit with advocate covering letter, dated - 01-2013.
Ex B7:Received copy of Caveat petition and affidavit with advocate covering letter, dated - 01-2013.
Ex B8:Received copy of Caveat petition and affidavit with advocate covering letter, dated - 01-2013.
Ex B9:Received copy of Caveat petition and affidavit with advocate covering letter, dated - 01-2013.
Ex B10: Certified copy of Partition Deed dated 08-01-2013 along with translation.
Ex B11: Certificate of Market Value dated 24-01-2013.
Ex B12: Certificate of Market Value dated 29-01-2013.
Ex B13:Certificate of Market Value dated 23-01-2013
Page 61 of 64 OS 184 of 2007
XXV ACJ CCC HYD
Ex B14:Certificate of Market Value dated 23-01-2013.
Ex B15: Certified copy of sale deed with English translation vide document No. 4782/1984, dated 01-05-1984.
Ex B16:Certified copy of gift settlement deed with English translation vide document No.2600/2009, dated 30-03-2009.
Ex B17: Two original property tax receipts dated 02-02-1996.
Ex B18: Original Property tax receipt dated 11-02-1997.
Ex B19: Original Property tax receipt dated 08-08-2000.
Ex B20:Original Property tax receipt dated 29-01-2003.
Ex B21: Original Property tax receipt dated28-01-2003.
Ex B22:Original Property tax receipt dated11-11-2005.
Ex B23: Original Property tax receipt dated 30-12-2006.
Ex B24: Original Property tax receipt dated 04-07-2009.
Ex B25: Original Property tax receipt dated 16-11-2010.
Ex B26: Original Property tax receipt dated 29-03-2012.
Ex B27: Original Property tax receipt dated 23-03-2013.
Ex B28: Original Property tax receipt dated 08-11-2013.
Ex B29: Original Property tax receipt dated 24-06-2014.
Ex B30: Original Property tax receipt dated 08-09-2014.
Ex B31: Original Property tax receipt dated 26-10-2016.
Ex B32: Original Property tax receipt dated 23-01-2018.
Ex B33: Family settlement deed filed along with translation copy dated 24-11-1965.
Ex B34: Proceeding of income tax officer, Anantapur, dated 07-08-1969.
Ex B35: Judgment and decree passed in OS.No. 123 of 1986, dated 18-08-1989
Ex B36: Partition deed filed along with translation copy, dated 26-04-1992.
Ex B37: Registered partition deed filed along with translation copy, dated 08-01-2013.
Ex B38:Sale deed document No. 9881 of 1985 filed along with translation copy, dated 19-12-1985.
Ex B39: Endorsement dated 13-04-1989 filed along with translation.
Ex B40: Special Notice of property tax filed along with translation copy dated 10-12- 2010.
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Ex B41: Receipt of property tax, dated 26-12-2010.
Ex B42: Special notice of property tax filed along with translation copy, dated 21-10- 2011.
Ex B43: Receipt of property tax, dated 23-12-2011.
Ex B44: Property Tax (Demand) dated 16-11-2012.
Ex B45: Property tax receipt dated 25-3-2013.
Ex B46: Property tax receipt, dated 29-03-2012.
Ex B47: Receipt dated 31-03-2018.
Ex B48: Registered gift deed Nos. 9808 of 1984 filed along with translation copy, dated 12-10-1984.
Ex B49: Registered gift deed No. 9689 of 1984 filed along with translation copy, dated 11-10-1984.
Ex B50: Registered Will document No.2 of 1964 filed along with translation copy, dated 10-03-1964.
Ex B51: Registered Will documents No. 16 of 1974 filed along with translation copy,
dated 14-05-1974.
Ex B52: 1-B Registration filed along with translation copy, dated 14-02-2019.
Ex B53: 1-B Registration filed along with translation copy, dated 05-07-2019.
Ex B54: Adangal and Pahani filed along with translation copy, dated 05-07-2019.
Ex B55: Certified copy of plaint in OS.No, 113 of 2001 on the file of Honble III Addl Chief Judge, CCC,Hyderabad, dated 29-03-2001.
Ex B56: Original copy of Plaint in OS.No. 113 of 2001 on the filed of Honble III Addl Chief Judge, CCC, Hyderabad, dated 29-03-2001.
Ex B57: Original payment receipt issued by K.M. Bangalore to Smt. P.V.Addiamma,
dated 24-12-1980.
Ex B58: Agreement of sale entered in between A.V. Chalapati and Late Shri P.V. Rama Mohan Choudhary, dated 25-03-1983.
Ex B59: Letter issues by A.V. Chalapati to Late Shri P.V. Rama Mohan Choudhary,
dated 24-10-1983.
Ex B60: Letter issued by A.V. Chalapati to Late Shri P.V. Rama Mohan Choudhary,
dated 24-10-1983.
Ex B61: Letter from P.V. Rama Mohan Choudhary to A.V. Chalapati, dated 08-05-1984.
Ex B62:Letter issued by A.V. Chalapati to Late Shri P.V. Rama Mohan Choudhary,
dated 12-05-1984.
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XXV ACJ CCC HYD
Ex B63: Letter issued by A.V. Chalapati to Late Shri P.V. Rama Mohan Choudhary,
dated 27-05-1984.
Ex B64: Diary Note of Late Shri P.V. Choudhary, dated 30-06-1984.
Ex B65: Diary Note of Late Shri P.V. Choudhary, dated 11-10-1984.
Ex B66: Diary Note of Late Shri P.V. Choudhary, dated 15-10-1984.
Ex B67: Letter issued by A.V. Chalapati to Late Shri P.V. Rama Mohan Choudhary,
dated 09-12-1984.
Ex B68: Letter issued by A.V. Chalapati to Late Shri P.V. Rama Mohan Choudhary,
dated 25-01-1985.
Ex B69:Letter issued by A.V. Chalapati to Late Shri P.V. Rama Mohan Choudhary,
dated 01-06-1985.
Ex B70: Letter issued by A.V. Chalapati to Late Shri P.V. Rama Mohan Choudhary,
dated 25-07-1985.
Ex B71:Letter issued by A.V. Chalapati to Late Shri P.V. Rama Mohan Choudhary,
dated 26-09-1985.
Ex B72: Payment receipt issued by A.V. Chalapati to Late Shri P.V. Rama Mohan Choudhary (validated), dated 19-12-1985.
Ex B73: Letter issued by A.V. Chalapati to Late Shri P.V. Rama Mohan Choudhary,
dated 31-10-1985.
Ex B74: Certificate to registration of firm along with deed of partnership, dated 19-04- 2014.
Ex B75: Copy of 1 (B) with regard to Sy.No. 223 of Lalithamma, dated 18-09-2016.
Ex B76: Copy of 1 (B) with regard to Sy.No.223, of sunitha,dated 18-09-2016.
Ex B77: Copy of 1 (B) with regard to Sy.No. 223,dated 14-02-2019.
Ex B78: Copy of 1 (B) with regard to Sy.No. 223, dated 05-07-2019.
Ex B79: Copy of Pahani, dated 05-07-2019.
Ex B80: Certified copy of Gift settlement with English translation, doc.No. 4161/1997,
dated 18-06-1997.
Ex B81: Certified copy of sale deed with English translation, doc.No.7180/1979, dated 21-11-1979.
Ex B82: Certified copy of Sale deed with English translation, doc No. 9517/1983, dated 23-11-1983.
Ex B83: Attested of statement with English translation, dated 27-01-1976.
Ex B84: Attested of Declaration with English translation, dated 13-05-1976.
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XXV ACJ CCC HYD
Ex B85: Certified copy of sale deed with English translation documents No. 2591/1979,
dated 18-04-1979.
Ex B86: True copy of statement of defendant No.4 before Land Reforms Tribunal with English translation, dated 28-01-1976.
Sd/-
XXV Additional Chief Judge, City Civil Court, Hyderabad.
IN THE COURT OF XXV ADDITIONAL CHIEF JUDGE, CITY CIVIL COURT
AT HYDERABAD.
Saturday, this the 30th day of April, 2022
PRESENT: SMT. B. PRATHIMA XXV Additional Chief Judge
ORIGINAL SUIT NO.53 of 2007
Between:
1. Ravita P. Reddy W/o Mahender Purmandla, Hindu, aged 37 years, Occ: Physician, R/o 26 Helmcrest, Alisoviejo, CA 92656, USA, rep. by GPA holder Ms.M.Risha Reddy D/o M.Krishna Reddy, aged 32 years, Occ: Software Engineer, R/o Flat No.103, Vijaya Towers, H.No.10-2-287/1/A, Shanti Nagar, Hyderabad-500028.
2. Ms.M.Risha Reddy D/o M.Krishna Reddy, aged 32 years, Occ: Software Engineer, R/o Flat No.103, Vijaya Towers, H.No.10-2-287/1/A, Shanti Nagar, Hyderabad- 500028. ….Plaintiffs
AND
1. Marri Krishna Reddy S/o Narsimha Reddy, aged 70 years, Occ: Retired Government Employee, R/o Flat No.103, Vijaya Towers, H.No.10-2-287/1/A, Shanti Nagar, Hyderabad-500028.
2. Marri Ranadheer Reddy S/o Krishna Reddy, aged about 42 years, Occ: Engineer, R/o 895 Dove Street, 3rd Floor, Newport Beach, CA 92660, USA.
3. Marri Sumathi W/o Marri Krishna Reddy, aged 62 years, Occ: Housewife, R/o Flat No.103, Vijaya Towers, H.No.10-2-287/1/A, Shanti Nagar, Hyderabad-500028.
4. Mohd Sharfuddin S/o Burhanuddin, R/o Velimela village, Ramachandrapuram Mandal via Patancheru, Medak District.
5. Vaggu Krishna S/o Yadaiah, R/o Velimela village, Ramachandrapuram Mandal via Patancheru, Medak District.
6. Kalvagadda Yettiah S/o Mallaiah, R/o Velimela village, Ramachandrapuram Mandal via Patancheru, Medak District.
7. Kalvagadda Ramachandriah S/o Mallaiah, R/o Velimela village, Ramachandrapuram Mandal via Patancheru, Medak District.
8. Kalvagadda Laxmaiah S/o Mallaiah, R/o Velimela village, Ramachandrapuram Mandal via Patancheru, Medak District.
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XXV ACJ, CCC, HYD
9. Kalvagadda Jangaiah S/o Mallaiah, R/o Velimela village, Ramachandrapuram Mandal via Patancheru, Medak District.
10. Kalvagadda Sathaiah S/o Mallaiah, R/o Velimela village, Ramachandrapuram Mandal via Patancheru, Medak District.
11. Kalvagadda Anjaneyulu S/o Mallaiah, R/o Velimela village, Ramachandrapuram Mandal via Patancheru, Medak District.
12. Dr.K.Kodanda Pani S/o K.Partha Sarathy, R/o Plot No.10, Arora Colony, Road No.3, Banjara Hills, Hyderabad.
13. K.Srinivasa Murthy S/o K.Partha Sarathy, R/o Plot No.10, Arora Colony, Road No.3, Banjara Hills, Hyderabad.
14. K.Aruna D/o K.Partha Sarathy, R/o Plot No.10, Arora Colony, Road No.3, Banjara Hills, Hyderabad.
15. Ratnamala W/o I.J.Dewakar, R/o 6-3-864/1/B, Sadat Manzil, Ameerpet, Hyderabad.
16. K.Karuna W/o K.V.D.M.V.Prasad, R/o 8-3-224/9/19, Bhavani Puram, Hyderabad- 500038.
17. C.Sethumadhava Rao S/o C.Peraiah, R/o 8-3-222/1/1, Flat No.405, Maruthi Nagar, Hyderabad.
18. B.Ratna Prabha D/o B.Ballaiah, R/o 16-11-1/5/8/C, Saleemnagar Colony, Malakpet, Hyderabad.
19. B.Srinivas S/o B.Ballaiah, R/o 16-11-1/5/8/C, Saleemnagar Colony, Malakpet, Hyderabad.
20. T.V.Parameshwara Rao S/o Late T.Sree Ramloo, R/o 24-B, Santoshnagar, Saidabad, Hyderabad.
21. T.Rama Devi W/o T.V.Parameshwara Rao, R/o 24-B, Santoshnagar, Saidabad, Hyderabad.
22. Jayanth Reddy S/o Dr.K.M.Reddy, rep. by father and guardian Dr.K.M.Reddy S/o Agam Reddy, R/o H.No.17-1-375/26/A/14, Santoshnagar Enclave, Hyderabad.
23. R.Ramya D/o Sridhar Varma, rep. by father and guardian Sridhar Varma S/o Krishnam Raju, R/o H5, Vora Towers, Yousufguda, Hyderabad.
24. I.Suryanarayana Raju S/o Sivarama Raju, R/o H5, Vora Towers, Yousufguda, Hyderabad. 25.Smt.Bhanoor Prameela W/o Buchi Ramulu, R/o Velimela, Ramachandrapur Mandal, Via Patancheru, Medak District
26. Marati Mallaiah S/o Lingaiah R/o Velima, Ramachandrapur Mandal, Via Patancheru, Medak District. 27.Kuntavenuka Gandaiah S/o Mallaiah, R/o Velimela, Ramachandrapur Mandal, Via
Page 3 of 48 OS 53 of 2007
XXV ACJ, CCC, HYD
Patancheru, Medak District.
28. Kuntavenuka Satyanarayana S/o Mallaiah, R/o Velimela, Ramachandrapur Mandal, Via Patancheru, Medak District. 29.Kuntavenuka Ramulu S/o Malliah, R/o Velimela, Ramachandrapur Mandal, Via Patancheru, Medak District. 30.Kuntavenuka Venkatesham S/o Mallaiah, R/o Velimela, Ramacandrapur Mandal, Via Patancheru, Medak District.
31. Kuntavenuka Jagan Reddy S/o Anji Reddy, R/o Velimela, Ramachandrapur Mandal, Via Patancheru, Medak District. 32.Marri Prabhakar Reddy S/o Late Yadagiri Reddy, C/o Dr. M. Shashirekha Reddy, Laxmi Nursing Home, Hyderabad Road, Shankarpally, RR Dist.
33. Marri Prameela Reddy W/o Krishna Reddy, R/o H.No. 5-7-330/1, Agapura, Hyderabad. 34.Marri Amarender Reddy S/o Krishna Reddy, R/o H.No. 5-7-330/1, Agapura, Hyderabad. 35.G.Padma W/o G.Srinivas Rao, Aged about 38 years, Occ: House Hold, R/o MIG-1- 137, IX Phase, KPHB Colony, Kukatpally, Hyderabad-500072. 36.M.Rama Kishore S/o Venkaiah, Aged about 45 years, Occ:Business, R/o MIG-II, 214,9th Phase, KPHB Colony, Kukatpally, Hyderabad -500072. 37.M.Bhanu Prasad S/o Late M. Ranga Rao, Aged about 44 years, Occ: Business.
38. M. Ramana Rao S/o Late M. Ranga Rai, Aged about 42 years, Occ: Business,
39. Smt. N. Ratna W/o N. Panduranga Sai, Aged about 45 years, Occ: Housewife, Respondents 37 to 39 are R/o Plat No,321/A/8, Road No.25, Jubilee Hills, Hyderabad. 40.Smt. Anju Mandano W/o Bijay Mandani, Aged about 52 years, Occ: House wife, R/o 4th Floor, Maruti Complex, Rajbhavan Road, Somajiguda, Hyderabad. 41.Jasram Prakash Choudhary S/o Jasram Choudhary, Aged about 39 years,Occ:Business, R/o Plot No. 13-C, Flat No.301, Divya Enclave, Kalyan Nagar, Venture-III, Hyderabad -500018. 42.G.Sashidhar S/o G. Narsimha Rao, Aged about 53 years, Occ:Business, R/o Flat No.51, Symphny Dwellings, Anand Nagar, Khairtabad, Hyderabad.
43. Smt. G. Jhansi W/o Sashidhar, Aged about 49 years, Occ:Business, R/o Flat No. 51, Symphny Dwellings, Anand Nagar, Khairtabad, Hyderabad.
44. B. Sita Rama Kirshna S/o B. Sai Prasad, Aged about 38 years, Occ:Service, R/o 20211, Sherman-way Apartment, Cross Roads 141,Conaga Park, CA-91306,USA. 45.M.Sree Rama Chandra Murthy S/o M.V. Satyanarayana, Aged about 35 years, Occ:Business R/o Flat No.G2, H.No.1-11-220,Chakkilam, Residency, Begumpet, Hyderabad-500016.
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46.J.P. Santharam S/o Audi Seshaiah, Aged about 53 years, Occ” Business, R/o Flat No. 302, Chakilam Residency, Gurumurthy Lane,Begumpet,Hyderabad. 47.Anil Kumar Nuwal S/o Jagadish Prasad Nuwal, Aged about 47 years, Occ:Business, R/o Plot No.8, Main Sector, Sastry Nagar, Bhilwara, Rajasthan.
48. M. Venkaaiah S/o Late M. Ankamma, Aged about 62 years,Occ:R/o 6-3-903/A/8, Somajiguda, Panjagutta, Hyderabad. 49.M.Bhaskara Rao S/o Late M.Ankamma, Aged about 59 years, R/o 6-3-668/10/68, Panjagutta, Hyderabad.
50. M.Srinivasa Rao S/o Late M. Ankamma, Aged about 47 years, Occ:Business, R/o MIG II, 214, Phase-IX, KPHB Colony, Hyderabad. 51.Smt. U.Mahalakshmi W/o U.V. Rao, Aged about 64 years,Occ: House Wife, R/o Plot No. 86, Phase-I, Kamalapuri Colony, Hyderabad-500073. 52.Smt. K. Sujatha Rani W/o K. Srinivas, Aged about 48 years, Occ: House wife, R/o Flat No.5-03, Marvel Residency, Rajbhavan Road, Somajiguda, Hyderabad-500082.
53. G.Srinivasa Rao S/o Late Chalamaiah, Aged about 43 yearts, Occ: Business, R/o MIG I, 136, Phase-IV, KPHB Colony, Kukatpally, Hyderabad-500072. 54.Smt. J.Pushpavathi W/o J.P. Santharam, Aged about 49 years, Occ: Business,R/o Flat No. 302, H.No. 1-11-220,Chakkilam Residency Street No.4, Begumpet, Hyderabad-500016. 55.Smt. M. Sailaja W/o M. Srinivasa Rao, Aged about 44 years, Occ:House wife R/o MIG II-214. Phase-IX, KPHB Colony, Kukatpally, Hyderabad. 56.K.Balaji S/o K.Rama Choudhary C/o Kuntavenuka Satyanarayana,Aged Major, R/o Velima Village, Ramachandrapuram Mandal, Hyderabad. 57.Mohd Arifuddin S/o Burhanuddin, Aged about 49 years, R/o Velima Village, Ramachandrapuram Mandal, Via Patancheru, Medak Dist.
58. M/s BVE INFRA having its office at plot No.117, Bhati’s Arcade, Green Park Avenue, Kompally Road, Jeedimetla village, Qutubullapur mandal, Medak district, presently Medchal-Malkajgiri district-500055. Rep. by its Managing Partners 1. Bhargav Raj 2. G.Venkat Ram Reddy and 3. Ravi Raju.
59. Marri Pushpal Reddy S/o Late M.Narayan Reddy, aged about 72 years, Occ: Business, R/o 175/B, Plassey Line, Aromore Bhavan Office, Bowenpally, Secunderabad, Telangana.
60. Bolaram Kasturi W/o Late Yadaiah D/o M.Mallaiah, aged about 45 years, Occ: Housewife.
61. Bolaram Ramesh S/o Yadaiah, aged about 29 years, Occ: Agriculture.
62. Bolaram Suresh S/o Yadaiah, aged about 26 years, Occ: Agriculture.
63. Bolaram Mahesh S/o Yadaiah, aged about 24 years, Occ: Student. (defendants 60
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to 63 are R/o Tellapur village, Ramchandrapur Mandal, Sanga Reddy District.)
64. M.Venkata Ratnam S/o M.Janardhan Rao, aged about 58 years, Occ: Business, R/o H.No.8-2-293/82/A/136/1, Jubilee Hills, Hyderabad.
65. N.Anitha Reddy W/o N.Dayakar Reddy, R/o MIG-96, BHEL, Ramachandrapuram, Sangareddy district.
66. K.Anuradha Reddy W/o K.Dharmender Reddy, R/o 14428, Scouthurst lane City, Chariotte, State NC, Pincode-28277. ….Defendants
This suit came before me for final hearing and disposal in the presence of Sri P.Ram Reddy, Advocate for the Plaintiffs, Sri D.V.Phani Kumar, Advocate for Defendant No.1 to 3, Sri Asfhaq Ahmed, Advocate for Defendant No.4, Sri M.Narsingh Rao, Advocate for Defendants No.5 to 11, Sri S.Malla Rao, Advocate for Defendant No.15, Sri G.L.V.Ramana Murthy, Advocate for Defendant No.17, 16, 18 to 21, Sri Md.Abdul Rub, Advocate for Defendants No.25 to 31, Sri P.Madhusudhan Reddy Reddy, Counsel for Defendant No.32 to 34, 65 and 66, Sri V.Srinivas, Advocate for Defendants No.35, 36, 50, 53 and 55, Sri M.Papa Reddy, Advocate for Defendant No.64, upon hearing all the counsel and on perusing the material available on record and the matter having stood over for consideration till this day, the Court delivered the following:
:: J U D G M E N T ::
1.Two plaintiffs filed the suit against three defendants initially, seeking partition of suit schedule immovable A and B properties among the two plaintiffs and defendants No.1 to 3 and for allotment of share by metes and bounds and separate possession thereof. Thereafter, subsequent purchasers of the suit schedule properties were added as defendants No.4 to 57.
Plaint averments in Brief are as follows:
2.1 Plaintiffs are the daughter of defendant No.1, defendant No.2 is son of defendant No.1 and brother of plaintiffs. Defendant No.3 is wife of defendant No.1 and mother of plaintiffs and defendant No.2. Plaintiffs submit that their grandfather and father of defendant No.1 viz., Narasimha Reddy owned considerable extents of agricultural lands at Velimela village, Ramachandrapur Mandal. During life time of
Narasimha Reddy the grandfather of plaintiffs, he purchased plot and got constructed a
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house bearing municipal No.11-2-558/1 at Agapur, Hyderabad and some agricultural lands at Velimela village in the name of first and second defendants to avoid provisions of Land Ceiling Act. After demise of grandfather Narasimha Reddy in the year 1983, defendant No.1 inherited the ancestral properties which are described in the schedule.
2.2The house property at Hyderabad is shown as schedule A property. The agricultural lands are shown in schedule B property. Even after demise of grandfather, plaintiffs and defendants did not partition the suit schedule property. The properties which were inherited and the properties which are acquired out of income from inherited properties remained undivided. Defendant No.1 was a Government employee. He did not have any other source of income except his salary. All the ancestral properties inherited stand in the name of defendant No.1 and 2. Plaintiff No.1 was marred in the year 1993, second plaintiff remained unmarried. Due to love and affection and mutual trust on family members, plaintiffs did not seek for partition.
2.3Plaintiffs came to know from reliable sources that in view of marriage of plaintiff No.1 and absence of plaintiffs at Hyderabad and in view of value of land going up due to proposals of Government to set up IIT, defendants developed an evil intention to sell away the properties for huge amounts without the knowledge and consent of plaintiffs. They started negotiating with third parties. Plaintiffs learnt that some extents of B schedule property is under acquisition for Outer Ring Road project and compensation is also likely to be given for said lands. Defendants have no manner of right to independently deal with the suit schedule properties, as they are the ancestral properties and properties purchased out of income from ancestral properties and they are joint family properties.
2.4Plaintiffs requested the defendants to partition the suit schedule properties or for settling their share, but defendants did not heed to their request. In view of the state
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amendments, the females whose marriage took place after 1985 have a right to seek for partition of the joint family properties and in view of Hindu Succession Act, plaintiffs are entitled for due share. Hence, the suit.
Written Statement averments of Defendant No.1 as adopted by Defendant No.2
and 3:
3.1The suit is not maintainable. The relationship of the plaintiffs with D1 to D3 is admitted. It is true that D1’s father owned considerable extents of lands at Velimela village and during his life time defendant’s father purchased properties in the name of
D1 and also D2. B schedule properties were not purchased till they were in the name of D1 and D2. D1 and D2 being the owners are entitled to sell the property.
3.2It is true that plaintiff No.1 was married in the year 1993 and plaintiff No.2 is unmarried. It is true that the properties are inherited but they stand in the name of D1 and D2 till they were disposed and with the sale amount, D1 performed the marriage of 1st plaintiff and brought up his children by spending huge amount for their education.
3.3It is denied that defendants developed evil intention to sell the property without knowledge and consent of the defendant. The properties were already sold away to third parties as detailed in the written statement under different registered sale deeds to different persons.
3.4Some of the land in B Schedule has been acquired for outer Ring Road project..
plaintiffs are not entitled for any part of compensation. The suit is not maintainable for
B schedule properties.
Written Statement averments of Defendant No.7 as adopted by defendants 5, 6
and 8 to 11:
4.1The suit is barred by limitation. Plaintiffs suppressed many facts and filed suit with ulterior motive. Plaintiffs did not make some of the remaining purchasers as
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parties to the suit. Hence, the suit is to be dismissed for non joinder of necessary parties. It is true that defendant No.2 is son of defendant No.1. These defendants do not have knowledge about the relationship between plaintiffs and defendant No.1. It is true that father of defendant No.1 and defendant No.1 owned agricultural lands at
Velimela village. It is denied that during life time of Narasimha Reddy, he purchased agricultural lands at Velimela village in the name of defendant No.1 and 2 to avoid the provisions of Land Ceiling Act and that after demise of Narasimha Reddy, defendant
No.1 inherited the ancestral properties which are suit lands. It is true that defendant
No.1 was a Government employee. It is denied that he had no other source of income except his salary. It is denied that all the ancestral properties inherited stand in the names of defendant No.1 and 2.
4.2This defendant does not have knowledge about the marital status of plaintiffs, as they are purchasers of suit lands and other plaint averments are denied. Defendant
No.5 by name Vaggu Krishna about 20 years back purchased part of suit land bearing
Sy.No.89 admeasuring Ac:2-24 guntas situated at Velimela village, through a registered sale deed document No.2321/1990 dated 14-06-1990, from the original owners and possessors Smt.Marri Leelavathi and Marri Krishna Reddy, for valid sale consideration. The vendor sold land to defendant No.5 for their family and legal necessities and immediately after sale, defendant No.1 and his mother handed over possession to the vendors. Defendant No.5 obtained mutation proceedings in his favour. He obtained pattadar pass book and title deed and his name was recorded in revenue records as pattadar and possessor in the year 1990 itself and his name is continuing. He is continuing in possession and enjoyment of the lands purchased.
Plaintiffs are also having knowledge of the same and they never objected for the same.
4.3Defendant No.5m and his brothers i.e. defendants 6 ,8 to 11 by name
Kalvagadda Yettaiah, Kalvagadda Laxmaiah, Kalvagadda Jangaiah, Kalvagadda
Sathaiah, Kalvagadda Anjaneyulu, together purchased part of land in Sy.No.35
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admeasuring Ac:3-09 guntas situated at Velimela village, under registered sale deed document No.4042/1991 dated 26-12-1991 from the original owners and possessors as detailed in the written statement. The names of defendant No.5 and his brothers were recorded in the revenue records as pattadars and possessors in the year 1991 and 1998 and their names are continuing without objection from anyone and to the knowledge of the plaintiffs, that if plaintiffs have any grievance they should have filed a suit against defendant No.1 and 2 and others in the year 1990, 1991 or 1998 itself and they did not even file any objection before any other authority and kept calm all these years and now at the instigation of defendants No.1 and 2 and other vested interested persons filed the present suit only to extract money from defendants No.5 to 11.
4.4Suit is hopelessly barred by limitation. Plaintiffs are never in physical possession of the suit schedule properties at any point of time. Defendant No.1 and 2 are never in possession of the land purchased by defendants No.5 to 11 since from 1990. Defendants No.5 to 11 are bonafide purchasers. After purchasing the lands, defendants No.5 to 11 invested huge amounts for the purpose of survey and fixing the boundaries over the lands and developed the lands and if the relief of partition is granted it will put defendants to great hardship in addition to causing serious financial loss. Even otherwise, the right of defendants No.5 to 11 in title is perfected by efflux of time. This Court has no territorial jurisdiction. Plaintiffs did not value the suit schedule properties. The suit ought to have filed before the District Court at Sanga
Reddy.
Written Statement averments of Defendant No.4:
5.1Plaintiffs, defendants No.1 to 3 are colluded with each other. Defendant No.4 is acquainted with defendant No.1 only who sold 2 acres, 1 gunta of land in Sy.No.361 of
Velimela village to defendant No.4 under registered sale deed bearing document
No.1983/1990 dated 17-05-1990. Relationship of defendant No.1 and Late Narasimha
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Reddy is not disputed. Upon thorough inquiry prior to purchase, defendant No.4 came to know that M.Narasimha Reddy had only one son i.e. defendant No.1, who was taken in adoption. On death of Narasimha Reddy name of defendant No.1 was incorporated in all the revenue record being the only legal heirs of deceased and he sold away the above property in Sy.No.361 mentioned in item No.46 of schedule B property. Defendant No.4 gifted 50% of his property under registered gift deed to his brother and in worst case also this defendant No.4 also perfected his title by way of adverse possession having cultivated the land since 1990.
5.2The factum of joint Hindu family is a concocted story. Defendant No.1 is exclusive owner of item No.46 of schedule B property and had rightly sold said property to defendant No.4 and put defendant No.4 in possession of the same in the year 1990. Since that date defendant No.4 is cultivating the land. All other plaint averments are denied. The suit is wrongly valued in respect of item No.46 of schedule
B property is concerned and plaintiffs cannot file suit for partition by paying fixed
Court fee as they are out of possession of the properties. Original Sy.No.361 admeasuring 6 acres 3 guntas of land. The owners of said land were three brothers namely Mohd.Hussain, Shahabuddin and Kareemuddin and each party was entitled to 2 acres and 1 gunta. The first brother Mohd.Hussain’s property was purchased by Late
Narasimha Reddy father of defendant No.1. On demise of Narasimha Reddy, the adopted son defendant No.1 inherited the properties and he sold away 2 acres 1 gunta in Sy.No.361 to defendant No.4 under registered sale deed.
5.3Defendant No.4 later gifted 1 acre 1 gunta to his brother under registered gift deed. The original owners Mohd.Hussain and Shahabuddin are the paternal grandfathers of this defendant No.4. Since three years Guava garden is developed by this defendant. Plaintiffs and defendants No.1 to 3 in order to extract money from this defendant and others filed this collusive suit. Item No.46 of schedule B property is not liable for partition.
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Written Statement Averments of Defendant No.15:
6.1This defendant No.15 along with her son I.V.Pavan Kumar and K.Aruna daughter of K.Parthasarathy jointly sold all that agricultural dry land admeasuring 6 acres 17 guntas in Sy.No.33 part, an area admeasuring 19 guntas in Sy.No.49 part, an area admeasuring 3 acres 38 guntas in Sy.No.50, an area admeasuring 9 guntas in
Sy.No.75 part, an area admeasuring 2 guntas in Sy.No.76 part, an area admeasuring 10 guntas in Sy.No.77 part and an area admeasuring 1 acre 19 guntas situated at Velimela village within the given boundaries to M.Sailaja W/o M.Srinivas Rao vide registered sale deed document No.7099/2003 dated 07-08-2003. Since then purchaser is in peaceful possession and enjoyment of said land. By the date of filing the suit, the purchaser of his defendant and others are in peaceful possession and enjoyment of the aforesaid land which is part and parcel of schedule B property. This defendant purchased said lands under registered sale deeds document Nos.2747/1993, 2748/1993 and 2749/1993 all dated 03-09-1993. As on the date of filing of the suit, this defendant has no right in view of the sale deeds. Hence, this defendant is not a proper and necessary party to the suit and the suit may be dismissed.
Written Statement Averments of Defendant No.17 as adopted by Defendants
No.16, 18 to 21:
7.1Inclusion of schedule A property in only to bring the case within the jurisdiction of this Court. The plaint allegations show that schedule A property is self acquired property of defendant No.2 and plaintiffs have no right by birth. Mere pleading that purchase was made by Narasimha Reddy in the name of defendant No.1 and 2 is not sufficient. Plaintiffs have to seek declaration that A schedule property pertains to family and other lands purchased benami, belongs to the family. The plaint is silent when the properties were purchased and which property is benami or nominal. The suit schedule properties are not joint family properties. There are no necessary pleadings on amending plaint after impleading defendants No.4 to 34. Schedule along with
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boundaries is not given to B schedule properties. The survey numbers do not show the total extent. Hence, the property asked to be partitioned is not clear for identification.
The suit is a collusive suit. Plaintiffs have to clearly establish what are the properties of Narasimha Reddy and what are the properties purchased with the income from ancestral properties.
7.2This defendant came to know that Narasimha Reddy has no issues and he adopted defendant No.1 and Marri Leelavati is his wife. On death of Narasimha
Reddy, Leelavati and defendant No.1 succeeded to the properties. Revenue authorities recognized the same and mutated their names in the revenue records. Apart from the family of Narasimha Reddy, others are also having right, title and interest in the lands in the suit survey numbers. Defendant No.17 purchased 7 acres 26 guntas of land in
Sy.Nos.51 to 57 and 75 of Velimela village after due verification under a registered sale deed dated 30-08-1993 from M.Sankara Reddy and others and she is in possession and enjoyment of the property. Defendant No.16 purchased 2 acres 11 guntas in
Sy.No.50 of Velimela village on 30-08-1993 from M.Sankara Reddy and others and she is in possession and enjoyment of the property. Defendant No.21 purchased 4 acres 39 ½ guntas of land along with others in several survey numbers including schedule B property survey numbers from M.Venkata Reddy and others under agreement of sales and later vendors executed GPA on 01-08-1992 registered as document No.2347/1992.
7.3All these defendants are bona fide purchasers. Defendant No.21 purchased 5 acres 5 guntas in Sy.No.33 and other survey numbers along with others from
M.Krishna Reddy and others. Later the vendors executed registered GPA dated 05-08- 1993. Defendant No.21 and others purchased 20 acres 20 guntas of land in Sy.No.33 along with others from M.Prabhakara Reddy and 8 others under agreement of sales and the vendors executed a registered GAP dated 30-01-1992 confirming the agreement of sales and to execute sale deeds in favour of purchasers on their names.
Defendant No.21 along with others purchased an extent of 9 acres 38 guntas of land in
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Sy.No.33 from M.Sankara Reddy and later he executed a registered power of attorney on 21-01-1992 confirming agreement of sale in favour of purchasers and gave power of his attorney to execute sale deeds, etc. Defendant No.1 sold an extent of 15 acres in
Velimela village in Sy.No.33 to defendant No.21 and other under agreement of sales and later appointed K.Sesha Rao as power of attorney holder to execute registered sale deeds on 09-04-1992.
7.4K.Sesha Rao as GPA registered document No.107/1992 and 274/1992 and executed registered sale deed on 30-08-1993 in favour of defendant No.1. Purchasers are in possession of the property. The vendee is in possession and mutation was effected. Pattadar pass books were given to the purchasers. Defendant No.21 in turn sold 1 acre 23 guntas of land to Anju Madhavi vide registered document
No.14146/2005 dated 19-10-2005. Defendant No.21 also sold 3 acres to Anil Kumar
Nuwas and executed registered sale deed on 11-07-2005. Defendant No.21 sold 2 acres 2 guntas to K.Prakash Chowdary and also sold 2 acres 30 guntas to J.Prakash
Chowdary and G.Seshidhar on 19-10-2005. Mutation was effected in revenue records in favour of purchasers and they were given pattadar pass books and title deeds.
7.5Defendants No.16 and 17 also sold 3 acres 37 guntas of land to G.Srinivas Rao under registered sale deed dated 05-06-2003, who in turn sold the same to
J.Pushpavathi under registered sale deed dated 11-07-2005. As per the desire of vendees under agreement of sales, the GPA executed a registered sale deed on 30-08- 1993 in favour of T.V.Parameswara Rao to an extent of 5 acres 28 guntas of land and he later sold the same to J.P.Santharam and N.S.R.C.Murthy and executed registered sale deed on 12-08-2005. So also, the GPA holder under GPA No.107/1992 and 247/1992, as per the desire of vendees under agreement of sales, executed a registered sale deed in the name of B.Sridhar S/o Balaiah in respect of 3 acres 6 guntas of land and executed a registered sale deed on 30-08-1993 and he while enjoying the property sold the same to Khartaram Chowdary and executed a registered sale deed dated 12-
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08-2005. The GPA holder K.Sesha Rao as desired by the agreement holders, executed a registered sale deed in respect of land to an extent of 4 acres 35 guntas of land in favour of their nominee B.Vijaya W/o Balaiah and executed a registered sale deed on 30-08-1993 and she in turn sold the same to J.Prakash Chowdary and two others under sale deed dated 11-07-2005.
7.6M.Shankara Reddy and others sold 1 acre 36 guntas of land in parts of
Sy.Nos.60 to 64 of Velimela village has sold the same to Anil Kumar Nuwal and executed a registered sale deed on 11-07-2005. Defendant No.17 and 16 sold 3 acres of land out of total extent of 7 acres 26 guntas and 2 acres 11 guntas purchased by them, to M.Srinivasa Rao under a registered sale deed document No.5051/2003 dated 15-06-2003. M.Srinivasa Rao also purchased an extent of 3 acres under registered sale deed dated 15-06-2003 from defendants 16 and 17 and he sold an extent of 4 acres 1 gunta of land to U.Maha Lakshmi and K.Sujatha Rani and executed a sale deed document No.8772/2005 dated 11-07-2005. On 12-08-2005, M.Srinivasa Rao sold the remaining two acres of land to G.Sesidhar and executed sale deed document
No.10264/2005 dated 12-08-2005.
7.7On 30-08-1993, K.Sesha Rao being GPA of M.Sankara Reddy and others executed a sale deed in favour of D.Srinivas/defendant No.19 in respect of land of 4 acres 20 guntas in Sy.No.55 to 57 of Velimela village and while enjoying said property, defendant No.19 sold an extent of 1 acre 20 guntas in favour of G.Jhansi vide registered sale deed document No.14143/2005 dated 19-10-2005. B.Srinivas also sold remaining extent of 1 acre 30 guntas of land to B.Seetha Rama Krishna under registered sale deed document No.14144/2005 dated 19-10-2005. Defendant No.19 further sold and extent of 1 acre 5 guntas of land in Sy.No.55 (part) out of 4 acres 20 guntas to K.V.S.R.Lakshmi under registered sale deed document No.14142/2005 dated 19-10-2005. On 30-08-1995, as requested by the vendees, the GPA K.Sesha Rao of
M.Sankara Reddy and others executed registered sale deed in the name of defendant
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No.18/K.Ratna Prabha in respect of the land to an extent of 3 acres 34 guntas in
Sy.Nos.75 and 76 out of total extent of 60 acres 17 guntas.
7.8Several purchasers are in possession and enjoyment of their respective landed properties since 1991 and therefore, it cannot be said that plaintiffs are in joint possession of the suit schedule properties along with defendants 1 to 3. The court fee paid is incorrect. Plaintiffs ought to have paid Ad valorem Court fee under Section 34(1) of the Court Fee Act. The plaint was so intelligently drafted to attract the provisions of Section 34(2) by suppressing the real facts. The suit is bad for non joinder of necessary parties who are purchasers from different vendors. The allegation that plaintiffs are the joint family members along with defendants 1 and 2 and defendant No.1 inherited the ancestral properties of Narsimha Reddy and that they are entitled to the share as per the Hindu Succession Act State amendment in AP and the subsequent amendment by the Central Act are false and incorrect. The provisions of
Section 6 of the Hindu Succession Act as amended is not applicable to the plaintiffs as the properties were already alienated by the owners in the year 1991 and consequently the provisions of Hindu Succession Act 39 of 2005 shall not affect or invalidate the alienations made by defendant No.1 and 2. Hence, the suit may be dismissed.
Written Statement Averments of Defendant No.25 to 31:
8.1The suit filed by the plaintiffs is bad in law for non joinder of necessary parties and the same is liable to be dismissed. The plaintiffs have filed the suit for partition and separate possession with active collusion with defendant No.1 to 3 only to extract heaps of money from these defendants as the market value of the suit schedule properties increased abnormally. These defendants are not aware about the relationship that the plaintiffs are daughters of defendant No.1 and defendant No.2 is son of defendant No.1 and defendant No.3 is wife of defendant No.1. It is denied that father of defendant No.1 and the grandfather of the plaintiffs by name Narasimha Reddy
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owned considerable extents of agricultural lands at Velimela village,
Ramachandrapuram Mandal of Medak District. It is denied that the grandfather of the plaintiffs had also purchased property i.e. plot and got constructed a house bearing municipal No.11-2-558/1 at Agapura, Hyderabad and some other agricultural lands at
Velimela village in the names of defendant No.1 and 2, so as to avoid provisions of the
Land Ceiling Act.
8.2It is denied that after demise of the grandfather of plaintiffs in the year 1983, defendant No.1 inherited the ancestral properties i.e. suit schedule A and B properties.
All the other averments of the plaint are denied. There is no cause of action at all and the cause of action is created for the purpose of this case. The valuation of the suit is improper and insufficient, as the plaintiffs are not in joint possession and enjoyment of the suit schedule properties and as such they ought to have paid Court fee under
Section 34(1) of the Court Fee Act. These defendants are in absolute peaceful possession and enjoyment of their respective suit lands since the date of purchase, that plaintiffs were never in joint possession of the suit properties at any point of time.
Hence, the suit may be dismissed.
Written Statement Averments of Defendant No.33 and 34:
9.1Suit for partition is not maintainable in the eye of law and so also on the facts of the case more particularly in respect of B Schedule suit properties item No.25 and 26 in Sy.No. 239,242, admeasuring Ac.7.31 gts, item No.29 to 34 i.e., Sy.No.281 to 286, admeasuring Ac.2.02 gts and item No.35 to 42 i.e., Sy.Nos 288 to 297 admeasuring AC.2.22 gts situated at Velimela village, Ramachandrapuram Mandal,
Medak District the exclusive property belongs to these defendant Nos.32,33 and 34. It seems to that the plaintiffs and defendants No. 1,2 and 3 are in collusion with each other to confound the property belonging to these defendants in the above said survey numbers the defendant No.32,33 and 34 the Defendants No.1 & 2, being the absolute
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owners and possessors of the land bearing Sy.No.239/Aa extent Ac.3-01 gts;
Sy.No.242/A extent Ac.4-30 gts total extent of agricultural land admeasuring Ac.7.31 gts, situated in the limits of Velimela village, Ramachandrapuram Mandal, Medak
District, having received total sale consideration sold the same to the Defendant
No.33 vide registered sale registered sale deed dated: 10-12-1998 bearing documents
No.4819 of 98 and delivered possession of the same on the same day same was mutated in the revenue records and issued patta pass books and titled deed in favour of defendant No.32. The defendants No.1 & 2 being the absolute owners and possessors of the land bearing Sy.No. 281 extent Ac.0-17 gts; Sy.No.282 extent Ac.0-16 gts;
Sy.No. 283 extent Ac. 0-03 gts; Sy.No.284 extent Ac. 0-15 gts; Sy.No.285 extent Ac.0- 17 gts; and Sy.No. 286 extent Ac.0-14 gts i.e., total extent Ac. 2-02 gts situated in ht e limits of Velimela village, having received valid sale consideration, sold to the
Defendant No.34 vide registered sale deed dated 17-08-2000 bearing documents No.
4373/2000 registered in the office of the District Registrar, Medak District at
Sangareddy and delivered possession of the same on the same day, the same was mutated in the revenue records and issued patta pass books and titled deed in favour of defendant No.33. Defendants No.1 and 2, being the absolute owners and possessors of the land bearing Sy.No.288 extent Ac.0-06 gts Sy.No.289 extent Ac.0-06 gts;
Sy.No.290 extent Ac.0-27 gts; Sy.No.293 extent Ac.0-11 gts; Sy.No.294 extent Ac.0-11 gts; Sy.No. 295 extent Ac. 0-13 gts; Sy.No.296 extent Ac. 0-18 gts and Sy.No. 297 extent Ac.0-10 gts i.e., total extent Ac. 2-22 gts situated in the limits of Velimela
Village, Ramachandrapuram Mandal, Medal District, having received the valid sale consideration sold the same to Defendant NO.34 vide registered sale deed dated 16- 08-2000 bearing document No. 4372/2000 registered in the office of the District
Registrar, Medak District at Sangareddy, and delivered possession of the same on the same day, the same was mutated in the revenue records and issued patta pass books and titled deed in favour of defendant No.34. Since the dates of purchase, these
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Defendants No.32 to 34 have been in peaceful possession and enjoying of the properties purchased by them without any interruption from any quarters, as absolute owners. On the application of these defendants, the Mandal Revenue Officer,
Ramachandrapuram issued proceedings for mutating the names of these defendants in respect of the extents purchased by them and accordingly issued pattadar pass books and title books in the name of the defendants No.32 to 34. The defendants No.32 to 34 have made huge investments on the land acquired by them by virtue of purchase under registered documents tracing title from the defendant No.1 and 2 and for the defendant No.32 to 34 development of the said properties.
9.2In the view of the face that the defendant No.1 and 2 sole the properties which is very much within the Knowledge of plaintiffs. As such the plaint schedule property is not available for partition. Plaintiff has approached this Hon’ble Court with unclean hands to extract the money under the threat of litigation by suppressing the real fact and alienations effected even prior to the filing of the above suit to the knowledge of the plaintiffs themselves. These defendants have purchased their respective extents in the years 1998 & 2000. Thus, the suit of the plaintiff filed in the year 2007 is hopelessly barred by limitation and thus the suit is liable to be rejected.
The said sale transactions under registered sale deeds being public documents are to the knowledge of whole world including the plaintiffs. Plaintiffs filed the suit seeking partition of the suit schedule B property. Without seeking relief of declaration and that the suit Schedule B Property is purchased by late Narasimha Reddy in the names of the Defendants No. 1 & 2 and without further seeking the relief of cancellation of the sale deeds executed by the Defendants No. 1 & 2 in favour of these Defendants No. 32 to 34, the suit of the plaintiffs for partition is not maintainable.
9.3These defendants are in possession and enjoying the properties purchased by them. Plaintiffs were never in joint possession of the B Schedule Property purchased by these defendants. The plaintiffs did not file any documents to show that they are in
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joint possession of the properties. Thus, suit of the plaintiff by paying fixed court fee of Rs.200/ is not maintainable and the same is liable to be rejected on the ground that non-payment of proper court fee. It is to be valued by paying full court fee on the market value of the properties, these defendants are bonafide purchasers for valid sale consideration. In case, this Hon’ble Court come to the conclusion that the suit schedule “B” property is liable for partition, the extents of the lands purchased by these defendants No. 32 to 34 may be allotted to the share of the Defendant No.1 & 2, to meet the ends of justice, otherwise these defendants, who are the bonafide purchasers for value, would be put to great hardship and suffer irreparable loss.
Written Statement Averments of Defendants No.35, 36, 50, 53 and 55:
10.1Sri. M. Shanker Reddy, Sri. M. Venkat Reddy, Sri. M. Madhav Reddy are joint owners and pattadars of the land situated in Sy.No. 73,48/AA, 52, 54/AA, 60,63,65,67,72,74,75,76,77/A,77/AA admeasuring Ac.19-32 Gts situated at Velimala (V) Ramachandrapuram Medak District. It is submitted that the Defendant No. 1 is the owner and Pattadar of the land admeasuring Ac.15-00 Gts in Sy.No.
73,49/A,50,56/AA, 56/A,56/E,57/AA, 58/A,58/AA,59/A, 62,63,67,73,74 and 76 situated at Velimala (V) Ramachandrapuram, Medak District. Similarly Sri.
M.Revatha Reddy is the owner and possessor of the land admeasuring Ac.5-00 gts in
Sy.No.33. 49A,50,56/A,56/AA,56/E,57/A,57/AA,58/A,58/AA,59/A,62,63,67,73,74 and 75 situated at Velimala (V) Ramachandrapuram, Medak District by virtue of Will
dated 23-10-1989 executed by Late. Leelavati, W/o Sri. M. Narsimha Reddy and his
name was also mutated as Pattadar and Possessor accordingly,the Patta in respect of land in Sy.No.33,49/E,51,53/A,55/AA,53/E,53/EE,55/A, 53/AA,55/E,59/E,61,63,64, 67,74,76,78/A, 78/AA and 78/E admeasuring Ac 20-00 Gts situated at Velimala (V)
Ramachandrapuram, Medak District stood in the name of Sri. M. Bakka Reddy, Sri.
M. Pratap Reddy, Sri. M. Dayakar Reddy, Sri. Narya Naik, Sri. Raji, Sri. Yadagiri.
Said Sri M. Narayan Reddy, died leaving behind Sri. Krishna Reddy and Nagi Reddy,
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both sons of Narayan Reddy and wife i.e., Smt. M.Lakshmi Narasamma, Krupakar
Reddy all sons of Yadagiri Reddy and Sri. M. Narsa Reddy, Raji Reddyboth sons of
Sanjeev Reddy, Sri. M. Pratap Reddy, Sri. M. Dayakar Reddy both sons of Sri.
Chandra Reddy, Sri. M. Sudheer Reddy S/o Sri. Bakka Reddy, said Sri. M. Shanker
Reddy, Sri. M. Venkat Reddy, Sri. M. Madhav Reddy all sons of Sri. Venkat Reddy.
Smt. Sumitramma W/o Venkat Reddy and the said Sri. M. Krishna Reddy and others entered into Agreement of Sale with Smt. Vijay Lakshmi and others to sell the said lands, Sri. M. Shanker Reddy , Sri. Venkat, Sri. Madhu S/o Sri. Venkat Reddy and
Sumitramma, W/o Sri. Venkat Reddy entered into a registered General Power of
Attorneys bearing Document No. 107/1992, in favour of Sri. K.Shesha Rao duly authorized and empowering him to sell the said property to prospective purchasers and to execute and register the same deeds.
10.2Sri. M. Randhir Reddy S/o Sri. Krishna Reddy executed a General Power of
Attorney Document No. 1764/1987 in favour of his father Sri. M. Krishna Reddy duly authorizing and empowering him to sell the said property to prospective purchasers and to execute and register the sale deeds. Sri. Krishna Reddy, Sri. Nagi Reddy both sons of Sri. Narayan and wife i.e. Sri. M. Laxmi Narasamma W/o Sri. Narayana and
Sri. Prabhakar, Ranga Reddy, Sri. Krupakar Reddy, all sons of Yadagiri Reddy and
Krishna Reddy S/o Sri. Sanjeev Reddy, Sri. Pratap Reddy, Dayakar Reddy, sons of
Chandra Reddy, Sudheer Reedy son of Bakka Reddy executed a registered General
Power of Attorneys Document No.108 of 1992,49/92,230/93 in favour of Sri. K.
Shesha Rao duly authorizing and empowering him to sell the said property to prospective purchasers and toe execute and register the sale deeds.
10.3Sri. M. Shaker Reddy and others though their constituted agent Sri. K. Sesha
Rao and Sri. M. Krishna Reddy also sold and extent of Ac 211 Gts in Sy.No. 50 situated at Velimala (V) Ramachandrapuram, Medak District to Defendant No. 16 under registered Sale Deed dated 30-08-1993, vide Document No. 3750 of 1993 and
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also delivered possession of the same. The Defendant No.16 thus became absolute owner in possession of the said property. It is submitted that the said extent of Ac.2-11
Gts purchased by Defendant No. 16 and Ac.7-26 Gts purchased by Defendant No.17 are adjacent and from into a compact block of the Ac.9-37,Gts. The Defendant No. 16 & 17 sold the said extent of Ac .9-37 Gts of land as detailed in the written statement.
10.4Said transactions took place over a period of three decades. The purchasers having purchased under the aforesaid respective registered Sale Deeds came into possession and enjoyment of their lands. The Defendant thus have been in possession and enjoyment of the said lands ever since the date of their purchase. The Defendants perfected their title by virtue of their long possession, all the above said lands were alienated by the sons of Sri. M.Narsimha Reddy prior to the amendment to Section 6 of the Hindu Succession Act. Thus such alienations are saved. The plaintiffs who claim of the suit to be the daughters of Defendant No.1 do not have have any rights in respect of the suit property. The Plaintiffs are fully aware about the sales made by
Defendant No. 1,2 in favour of other Defendants and the subsequent sales made by them. The plaintiffs have such knowledge in the year question such sales for over a period of 14 years. The plaintiffs didn’t even question the sales effected in favour of the purchases i.e. the Defendants herein, there is no Cause of Action for the above suit either on 15-11-2006 or on 05-01-2007 of any other day as alleged by the Plaintiffs in the plaint, the Plaintiffs are not in possession of the suit property at any point of time.
The plaintiffs suppressing such fact valued the suit under Section 34 (1) of APCF and
SV Act instead of under Section 34 (2) of the Act. The Court Fees paid is grossly insufficient and the suit is liable to be dismissed on this ground alone. Hence, the suit may be dismissed.
11.Basing on the above pleadings, the following issues were framed for trial on 01-11-2017:
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1. Whether the plaintiffs are entitled to seek partition and separate possession of suit schedule properties as prayed for?
2. Whether the alienations made by defendant No.1 in respect of schedule B lands are binding on the plaintiffs?
3. To what relief?
12.During the course of trial, on behalf of plaintiffs PW1 and PW2 were examined and Ex.A1 to A61 were marked. On behalf of the defendants, DW1 to DW6 were examined and Ex.B1 to B118 were marked.
Issues No.1 and 2:
13.The suit is filed for partition. It is not disputed that the suit is filed by the two daughters of 1st defendant claiming right in share of the properties under Hindu Law.
1st and 3rd defendants are husband and wife. Plaintiffs are the two daughters and 2nd defendant is the only son of 1st and 3rd defendants. The two plaintiffs filed the suit initially only against their parents and brother and later impleaded Defendants No.4 to 66 as purchasers of different suit properties. Plaintiffs sought Partition of immovable properties described in schedule A and B.
14.Schedule A property is shown as ancestral residential house bearing No.11-2- 557/1 (mentioned as 558/1 in page 5 of the plaint) at Agapur, Hyderabad Municipal limits admeasuring 438 Sq Yd. Schedule B property is shown as agricultural lands admeasuring 57-38 Guntas in 48 different Sy. No.s of Velimela village. During the pendency of the suit, plaintiffs abandoned the suit in respect of (1) Ac 01-06 out of Ac 01-28 in Sy. No.62 (2) Ac 00-19 Gt in Sy. No.63 (3) Ac 00-222 Gt in Sy. No.67 (4) Ac 00-25 out of Ac 03-15 Gt in Sy. No.53 as per orders dt.26-11-2018 in IA 1498/2018 and (5) AC Ac 00-38 Gt inSy. No. 91 (6) Ac 01-28 in Sy. No.459 vide orders dt.13-08- 2018 in IA 85 of 2018.
15.As per the plaintiffs, their paternal grandfather was owner of considerable
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extents of agricultural lands at Velimela village, that during his lifetime, their paternal grandfather purchased a plot and constructed house bearing Municipal No.11-2-558/1 at Agapur Hyderabad and some agricultural lands at Velimela village in the names of 1st and 2nd defendant to avoid attracting the provision of Land Ceiling Act. They further claimed that their grandfather died in the year 1983, that D1 inherited the ancestral properties, that the properties were not partitioned.
16.Plaintiffs further claimed that 1st plaintiff was married in the year 1993, that the 2nd plaintiff was unmarried (since married), that the plaintiffs came to know through reliable sources that in view of the fact that land value had gone up, defendants developed an evil intention to sell the property for huge amounts without the knowledge and consent of the plaintiffs and started negotiating with third parties and some property was also under acquisition for outer ring road project, that the properties are joint family properties that they have got right to seek for share in view of the State amendment which provided for females whose marriage took place after 1985 and also in view of the Hindu Succession Act amendment.
17.The suit of the plaintiffs, amongst other grounds, is strongly resisted by the contesting defendants who claim to be subsequent purchasers on the ground that they purchased the respective suit schedule agricultural lands under different registered sale deeds long back and that their names are mutated in the revenue records and they are in possession of their respective purchased lands. Defendants resisted the suit on the grounds that -
1. The suit is barred by limitation.
2. Narasimha Reddy had no issues and he adopted defendant No.1, Marri Leelavathi is his wife., that on death of Narasimha Reddy in the year 1983, his wife Marri Leelavati and his son D1 Marri Krishna Reddy succeeded to the properties.
3. Some of the subsequent purchasers are not made parties to the suit and the suit
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is bad for non joinder of necessary parties.
4. The vendors i.e. father Marri Krishna Reddy and paternal grandmother Marri Leelavathi sold the properties long back under registered sale deeds for the sake of family necessities.
5. Plaintiffs are not in physical possession of the suit lands.
6. This Court has no territorial jurisdiction. The suit should have been filed before the District Court at Sanga Reddy.
7. The suit is undervalued as it was valued on the premise that the plaintiffs are in joint possession.
8. Plaintiffs failed to seek declaration that some of the properties purchased were benami, but the same belongs to the joint family and failed to seek the relief of cancellation of the registered sale deeds.
9. Plaintiffs are not entitled for any share as the properties were already alienated.
The following pleas are taken during trial:
10.2nd plaintiff married a person from other religion and as such she is not entitled to any share in the properties.
11. The suit is bad for partial partition as the plaintiffs left out some properties.
18.Strong contest ensued in the suit. 2nd plaintiff examined herself as PW1. 1st plaintiff was not examined. Plaintiffs also examined a witness as PW2 said to be knowing about the family properties. Neither the father nor the brother of the plaintiffs gave their evidence before the court.
19.Firstly, coming to the objection of some of the defendants that this court has no territorial jurisdiction to entertain the suit, evidently, the suit is filed for partition of all immovable properties. Schedule A property is located at Hyderabad which comes under the jurisdiction of the District Court at Hyderabad and Schedule B properties are located at Velimela Village of Ramachandrapuram Mandal which comes under the jurisdiction of District Court at Sangareddy. Thus, as part of the suit schedule proprieties is located at Hyderabad, this court has territorial jurisdiction to entertain the
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suit.
20.Nextly, coming to the suit being undervalued, a plea is taken by the contesting defendants that the plaintiffs are out of possession of the suit properties and that the court fee paid by them seeking for partition of the suit land claiming joint possession under Section 34 (2) of AP Court Fee and Suits Valuation Act, 1954 is not correct.
21.This court observes that the Court fee shall be collected on the averments in the plaint and it is a mixed question of law and fact and in the present case, plaintiffs claiming to be joint owners being in joint possession sought for partition and separate share to them. It had been laid down by the Apex Court that only the plaint averments should be considered for valuing the suit. The Apex Court in Neelavathi and Ors. Vs.
N. Natarajan and Ors. (AIR1980SC691) observed as follows:
“6. On reading of the plaint as a whole, we are unable to agree with the view taken by the High Court. It is settled law that the question of court fee must be considered in the light of the allegation made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. All the material allegations contained in the plaint should be construed and taken as a whole vide S. Ram. Ar. S. Sp. Sathappa Chettiar v. S. Ram Ar. Rm. Ramanathan Chettiar MANU/SC/0003/1957 : [1958]1SCR1021 .”
22.In the light of the above observations, only plaint averments shall be considered for valuing the suit and collection of court fee. Defendants did not dispute the valuation of the relief of partition, but they objected for payment of court fee by the plaintiffs on the premise of being in joint possession of the suit property along with
D1. Plaintiffs paid the requisite court fee under section 34 (2) of AP CF & SV Act, 1956 claiming to be in joint possession of the suit properties along with D1. Plaintiffs claimed to be joint possession of the suit lands in their plaint and only the plaint averments have to be construed for deciding the correctness of the court fee paid. I
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hold that the court fee paid by the plaintiffs basing on the plaint averments under section 34(2) of APCFSV Act is correct. This point is decided accordingly in favour of the plaintiffs.
23.The next question is whether the suit properties are available for partition?
What is the effect of the several registered sale transactions in favor of third parties/defendants and if the same are binding on the plaintiffs?
24.For better appreciation, the several sale transactions of the suit properties claimed by the defendants are tabulated below:
Item Sy. No.ExhibitDocument particulars No.Extent 19Sy No.89Ex.B1Doct. No.2321 of 1990 dt.14-06-1990 Ac 02-24 GtMarri Leelavathi and Marri Krishna Reddy sold in favor of D5 2Sy No.35Ex.B2Doct. No.4042 of 1991 dt.26-12-1991 Ac 03-09 GtMarri Leelavathi and Marri Krishna Reddy sold in favor of D6 to D11 Development Agreements cum GPA (1) Doct.No.2608 of 2015 dt.13-02-2015 (2) 14307/2015 dt,12-08-2015 (3) 16483/2015 dt,03-09-2015 (4) 19108 of 2017 dt.06-09- 2017 21Sy No.101/AA Ac 02-21 GtEx.B3Doct. No.859 of 1998 Sy No.101 Ac 00-34 GtMarri Krishna Reddy and Marri Randhir Reddy sold in favor of D6 to D8 and D10 25Sy No.239/AA Ac03-01 GtEx.B16 Doct. No.4819 of 1998 dt.10-12-1998 Sy No.242/A Ac 04-30 Gt Marri Krishna Reddy and Marri Randaheer Reddy ( D1 and D2) sold to 26 D32 29Sy No.281 Ac 00-17 GtB17Doct. No.4373 of 2000 dt.17-08-2000 to Sy No.282 Ac 00-16 Gt Marri Krishna Reddy and Marri 34Sy No.283 Ac 00-03 Gt Randaheer Reddy (D1 and D2) sold to Sy No.284 Ac 00-15 Gt
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Sy No.285 Ac 00-17 Gt D33 Sy No.286 Ac 00-14 Gt 35 Sy No.288 Ac 00-06 GtB18Doct. No.4372 of 2000 dt.16-08-2000 to Sy No.289 Ac 00-06 Gt Marri Krishna Reddy and Marri 42Sy No.290 Ac 00-27 Gt Randaheer Reddy (D1 and D2) sold to Sy No.293 Ac 00-11 Gt D34 Sy No.294 Ac 00-11 Gt Sy No.295 Ac 00-13 Gt Sy No.296 Ac 00-18 Gt Sy No.297 Ac 00-10 Gt
Sy No.326 & 326/AA29Doc.No.3484/1995 dated 06-07-1995 Ac 01-27 Gtsold by D1 in favor of M. Mallaiah
B59 Doct. No. 10550/2009 dt.20-11-2009 B73 Doct. No.22813/2017 dt.17-12-2007. M. Malliah sold in favor of D64
25. D5, D6 to D11 apart of Ex.B1 to B3 noted above also got marked Ex.B4 to
B15 pahanies. Ex.B4 to B9 are filed as CC of pahanies for the years 1992-93, 1994-95, 1999-2000, 2004-05, 2010-11 and 2014-15 showing D5 as pattadar and possessor of land in Sy No.89 (Item No.19). Ex.B10 to B 11 are filed as CC of pahanies for the years 1992-93, 1994-95, 1999-2000, 2004-05, 2010-11 and 2014-15 showing land in
Sy No.35 and 101 (Items No.2 and 21) in the names of D6 to D11.
26.D32, D33, D34 apart from getting marked Ex.B16 to B18 CC of registered sale deeds noted above, also got marked Ex.B19 to B24. Ex.B19 is filed as mutation proceedings of the MRO dt.28-04-2003 mutating the properties purchased under these sale deeds in the names of D32 to D34. Ex.B20 to B24 are filed as Pattadar Pass
Books and Title Deeds of D32 to 34 in respect of these properties respectively showing said properties as their properties.
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27. D64 apart from relying upon Ex.A29 sale deed of the year 1995 said to have been executed by D1 in favor of M. Mallaiah in respect of sale of land in Sy No.326, also got marked Ex.B60 to B72 and B74 to B79. These documents all show that the purchaser D64 had applied for construction of building in this property, that sanction was accorded with building plan, NOC was given under Ex.B67 and the Department of Factories have approved the same vide Ex.B69 dt.17-07-2010. Evidently, some of the documents are of transactions that transpired subsequent to the suit. The other important documents are Ex.B75 CC of ROR of the year 1979-80 and Ex.B76 to B78
CC of pahanies for the year 1982-83, 85-86, 1991-1992 which show the land in Sy
No.326 in the name of D64.
28.It is important to note that the plaintiffs themselves got marked several CC of registered sale deeds alleging that their father and brother without their knowledge and consent sold away part of B schedule properties. Of course, plaintiffs also got marked several documents of which some of them are the CC of registered sale transactions under which the contesting defendants are claiming title. It is important to note that the plaintiffs in their plaint did not allege any alienation and they have averred that D1 to D3 were negotiating with third parties for sale of lands.
29.As rightly submitted by the learned counsel for Defendants, the plaintiffs having filed the suit for partition for huge extents of agricultural lands in different survey numbers did not file even a single encumbrance certificate. Learned counsel for the defendants vehemently submitted that this conduct of the plaintiffs itself shows that the suit is a speculative suit filed to extract money from the bonafide purchasers and that this argument of theirs is also supported by the fact that the plaintiffs while the suit is pending, abandoned their claim in respect of part of the suit property. This argument of the learned counsel for defendants finds force when the statements made in the cross-examination of PW1 are appreciated.
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30.The chief affidavit of PW1 is affirmation of the facts pleaded in the plaint. PW1 in her cross-examination by the learned counsel for the contesting defendants stated that her father had borne all the expenses of their education and marriages, that her father sometimes accompanies her when she is attending the court. When questioned about the documents Ex.A1 to A56, PW1 stated that she did not obtain said documents from the office of Registrar, but they were available at her father’s house, but she does not know whether her father obtained those certified copies. This statement of PW1 shall be appreciated with the fact that PW1 also admitted in her cross-examination that as on the date of filing the suit, the address mentioned of the plaintiffs and D1 and D3 are the same. She also stated that her father retired from service in they year 1995, that
before her marriage, she visited USA along with her parents a couple of times. Thus,
from these statements of PW1 it is also evident that the father of plaintiffs i.e. D1 is not an illiterate or layman, he was rather a retired Government Servant, that the family had also traveled abroad more than once. When suggested that the relationship between herself and her parents is very cordial, PW1 denied the same. This statement of PW1 is not believable. Though plaintiffs filed the suit against their parents, it is seen that PW1 is not only attending the court along with her father, she also filed documents which were apparently procured by her father.
31.Nextly, PW1 was questioned thoroughly as to the reason for sale of properties by her father. It is again to be noted that plaintiffs in their plaint stated that her father was trying to negotiate with third parties for alienating the properties. They have not pleaded that their father and brother sold some of the landed properties. Defendants in their written statement have taken a plea that the properties were the properties of D1 and have also pleaded that D1 sold the properties for the sake of family necessities.
Burden is not on the plaintiffs to show that their father sold the properties for the sake of family necessities and it is on the defendants who took said plea. Learned counsel for defendants have submitted in their written arguments that burden is on the
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plaintiffs to prove that the properties were sold for family necessities is on the plaintiffs and the same is not correct.
32.Regarding the sale of properties for family necessities, learned counsel for D32, 34, 65 and 66 relied upon the authorities (1) Kehar Singh (D) Thr. Lrs. vs Nachittar
Kaur AIR 2018 SC 3907 (Also relied upon by learned counsel for D64) (2) Beereddy
Dasareatharami Reddy vs V. Manjunath AIR ONLINE SC 1183 (Also relied upon by learned counsel for D5). In these authorities, the Apex Court held that once the factum of existence of legal necessity stood proved, then no cooparcener has a right to challenge the sale made by the Karta of his family.
33.It is to be seen from the testimony of PW1 if the defendants succeeded in eliciting if the sale transactions were made for the sake of family necessities. PW1 was questioned as to when she last met her father and she stated that she met her father in a family function. She further deposed that her father had taken care of the three of them (two daughters and one son) with love and affection, that her father did not have any vices and that he was a person of good character. She further deposed that her father had provided financially to the plaintiffs at the time of their marriages towards “PASUPU KUMKUMA”. She also stated that her sister, 1st plaintiff did her Doctorate in USA and her brother also did MS in USA. Thus, it is seen that the father D1 had indeed provided well for the education and marriages of his two daughters and son.
34. Regarding sale of properties, PW1 when questioned that her father sold the properties under Ex.A29 for the sake of family necessities, PW1 pleaded ignorance of the same. If it is the case of PW1 that her father sold the properties not for family necessities, PW1 ought to have denied the same, but she pleaded ignorance.
35.Nextly, PW1 was questioned as to why they have abandoned part of B schedule properties during the pendency of the suit. It is discussed above that during the pendency of the suit, plaintiffs abandoned the suit in respect of (1) Ac 01-06 out of Ac
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01-28 in Sy. No.62 (2) Ac 00-19 Gt in Sy. No.63 (3) Ac 00-22 Gt in Sy. No.67 (4) Ac 00-25 out of Ac 03-15 Gt in Sy. No.53 as per orders dt.26-11-2018 in IA 1498/2018 and (5) AC Ac 00-38 Gt in Sy. No. 91 (6) Ac 01-28 in Sy. No.459 vide orders dt.13-08- 2018 in IA 85 of 2018. The abandonment is for an extent of about Ac 06-00 to Ac 07- 00 of land. PW1 stated that she does not remember why they have abandoned part of B schedule properties during the pendency of the suit. It appears that though the plaintiffs have filed the suit, the father had collected all the documents, he kept the documents in his house, he got the suit filed through his daughters, filed written statement though seeking to dismiss the suit in respect of Plaint B schedule properties, but is supporting his daughters in as much as he gave the documents to the plaintiffs and he is accompanying PW1 to the Court.
36.Nextly, coming to the authority of D1 and D2 to sell the suit schedule properties, the stand of the defendants is multi fold. They took the pleas that - D1 got the property on his own from his adoptive father, The sale transactions executed by D1 show that he proclaimed himself as the owner of the property sold.
Even otherwise, the properties were sold for family necessities.
37.Regarding the first plea that D1 got the property on the death of his father and he held the same as independent owner, the admitted facts are that D1 is the adoptive son of Marri Narasimha Reddy and his wife Marri Leelavathi. Marri Narasimha Reddy died in the year 1983, leaving behind his adoptive son and wife. All the properties devolved on the son Marri Krishna Reddy and wife Marri Leelavathi. Marri Krishna is blessed with two daughters and one son and they acquire right in the properties of their grandfather by birth in those properties which remained. This is the character of the ancestral property. D1 being the Kartha of the family can sell the ancestral
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properties for the legal and family necessities.
38.It is the case of the defendants that the properties were sold for family necessities. It is a fact that D1 got his children highly educated. 1st plaintiff is in USA and she is also said to be working there. 2nd plaintiff is also a software engineer. The son is also highly educated. It is also a fact that the father D1 provided financially to the two daughters at the time of their marriages towards PASUPU KUMKUMA. These facts are to be appreciated with the admission of PW1 that her father had no vices, that her father was Government Servant and that her father had good character. Thus, only one reason can be given for the sale of these properties by the father and it is that the were for family necessities, i.e. to provide for the education and marriages of the three children. Further, other properties might have been purchased from the sale proceeds, but that is not the case here and all the properties shown are ancestral properties and thus, it is concluded that the properties were sold only for the sake of family necessities.
39.Coming to the enjoyment of the properties by the respective purchasers, PW1 denied that they are not in joint possession of the properties and that the properties are in possession of the respective purchasers. The witness of the plaintiffs PW2, who is examined as a person knowing about the parties and the family properties, deposed that he is having acquaintance only with Narasimha Reddy and he does not have any acquaintance with the family of D1. He stated that plaintiffs and D2 never resided at the village. It is also not the case of the plaintiffs that they have resided at Velimela village. This court observes that mere non residence will not oust a coparcener from joint possession unless it is a plea of adverse possession by the coparcener/joint owner.
40.PW2 further stated that he does not know if D1 inherited any properties from his father. When questioned about D5 and D7 and brothers of D7, PW2 answered in the affirmative that he know them. He admitted that D5 purchased land from
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Narasimha Reddy and D6 to D11 purchased from D1 about 20 years back and that D6 to D11 are in possession of the property purchased by them. When questioned about the possession of the property purchased by D5, PW2 answered that D5 may be in possession of the property purchased. He also stated that he does not know if D1 sold
B Schedule properties long back to the defendants.
41.When specifically suggested that D1 sold part of the property to D16 to D21 and D32 to D34, PW2 pleaded ignorance and stated that he do no know if they are in possession of the property purchased by them and if D32 to D34 are cultivating the lands purchased by them. He further deposed that the does not know which properties were purchased by D1 and D2 to third parties and that the 2nd plaintiff did not inform him on that. These statements of PW2 show that he is not acquainted with the facts of the case. If he is acquainted with the family lands at Velimela village as affirmed in his chief -affidavit, PW2 have would definitely stated about the possession of the lands at
Velimela village and he would not state that he does not know about the ground position. Hence, this evidence of PW2 who is a witness of plaintiffs is found to be supporting the version of the defendants than that of the plaintiffs.
42.Further, the documents filed by the D64 viz., Ex.B60 to B72 and B74 to B79, all show that the purchaser D64 had applied for construction of building in this property, that sanction was accorded with building plan, NOC was given under Ex.B67 and the Department of Factories have approved the same vide Ex.B69 dt.17-07-2010.
Evidently, some of the documents are of transactions that transpired subsequent to the suit. The other important documents are Ex.B75 CC of ROR of the year 1979-80 and
Ex.B76 to B78 CC of pahanies for the year 1982-83, 85-86, 1991-1992. All thee documents clearly show that land in Sy. No.326/A in an extent of Ac 01-27 Gtis in physical possession of D64.
43.It is also the defence of the defendants that the plaintiffs ought have sought the
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relief of declaration that the suit Schedule B Property was purchased by late
Narasimha Reddy in the names of his son and grandson viz., Defendants No. 1 & 2 and that seeking the relief of cancellation of the sale deeds executed by the
Defendants No. 1 & 2 in favour of the purchasers, the suit of the plaintiffs for partition is not maintainable. Evidently, the suit is filed for partition. Plaintiffs admittedly, are not parties to any of the sale deeds or sale transactions. In such case, it is not necessary for the plaintiffs to seek for cancellation of the registered sale deeds. Further, the very right of the plaintiffs to seek for a share in the properties is to be adjudicated in a suit for partition and it is not necessary to separately seek the relief of declaration that plaintiffs have a right to share.
44.Further, regarding the plea that some of the transactions are kept in the names of D1 and D2 being joint family members and the counter of the defendants that these properties are benami, this court observes that it is for the plaintiffs to prove that their grandfather had purchased the properties and kept them in the names of the joint family members D1 and D2. To prove a transaction as benami or that they were the joint family properties but purchased in the name of D1 and D2, it is to be proved that the properties were purchased by late Marri Narasimha Reddy, but in the name of D1 and D2, but there is no evidence on said aspect.
45.Coming to the next objection of the defendants that the suit for partial partition is not maintainable, learned counsel for D5, D6 to D11 D58 relied upon the authorities of the Apex Court in (1) Elizabeth vs Smt. Mariyamma and others disposed on 23
January, 2013 (20 Rajendra Kumar Bose vs Brojendra Kumar Bose on 30
August, 1922 reported in 77 Ind Cases 790; and (3) Kenchegowda vs Siddegowda
(1994) 4 SCC 294. Evidently, the suit is filed only for A schedule House at
Hyderabad and B schedule lands at Velimela village. It was elicited in the cross- examination of PW1 that the family also has an ancestral house at Velimela village in an extent of 1000 Sq Yd. Evidently, this property was not included in the suit.
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46.It is settled law that when all the joint properties/joint family properties were not made the subject matter of the suit, the suit is not maintainable for partial partition.
It is also settled law that if the plaintiffs seek to exclude any joint family from partition, the same can be done by stating the reason for excluding it from partition. It is also settled that traditionally, grazing fields, thrashing floors and presently, lands nearer to urban areas which foresee development are excluded from partition.
However, no reason is given by the plaintiffs as to why they have excluded the ancestral house at Velimela village from partition.
47.Defendants also got elicited in the cross-examination of PW1 that there is a flat bearing No.103 at Vijaya Towers at Shanti Nagar, Hyderabad in the name of mother of the plaintiffs i.e. D3. This property is not included in the suit. This Court observes that as the property is in the name of the mother of the plaintiffs it is not amenable for partition, unless it is shown that it was purchased in the name of D3 for the benefit of the joint family. There is no such evidence on record. Hence, I hold that the plaintiffs need nod seek for partition of the flat at Shanti Nagar. However, as it is admitted that the family is having ancestral house at Velimela Village, it shall be also be sought for partition, which the plaintiffs failed to do. Hence, the suit is also bad for seeking partial partition.
48.Nextly, coming the objection of the defendants that the 2nd plaintiff converted to
Islam and that she is not entitled for any share. Evidently, at the time of filing the suit, 2nd plaintiff claimed to be unmarried. During trial it has come on record that she married some time in the year 2006 or 2007. There is no evidence on record to show that 2nd plaintiff converted to Islam. Even otherwise, no authority is cited by the defendant in support of this defence of theirs. Hence, I hold that this objection does not merit any consideration.
49.It is also the argument of the learned counsel for D5 that as the 1st plaintiff left
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India and became an American citizen, she is not entitled to claim any right of share over the properties in India. This objection is absurd. There is no law which says that an Indian woman by birth who went abroad and became American citizenship loses her right which she had by birth over the properties in India. This objection does not merit any consideration.
50.Regarding the nature of the suit schedule properties, it is the submission of the learned counsel for D64 that the suit properties are the self acquired properties of D1.
Learned counsel submitted that without prejudice to their claim that the plaintiffs have failed to prove that B schedule properties are the joint family properties, their claim is that the property inherited by a Hindu form his father is deemed to be his self acquired property as provided under Section 8 of Hindu Succession Act. Learned counsel relied upon the authority of the Apex Court in the famous Judgment of Commissioner of
Wealth Tax, Kanpur and others vs Chander Sen (1986) 3 SCC 567 and another
Judgment in Musini Leela Prasad Vs Musini Bhavani and others 1995 (1) APLJ 263.
51.This court observes that as per settled law, the property which the son received from his father towards his share will be held by the son as his own property till the birth of his children and as and when he begets children, the son and now the daughter also become a coparcener. That property which the father got to his share in the partition or notional partition is the own property of the father which he can deal as he wishes. (see M. Krishna Moorthy vs K. Pndee Pankar and others 2017
LawSuit(Mad) 988); Selvi Duraiswamy vs R.Santhanam 2017 LawSuit(Mad)
4729).
52.Learned counsel for all the contesting defendants also submitted that as the alienations were made earlier to 20-12-2004, the same cannot be questioned by the plaintiffs. Learned counsel for D32 counsel also relied upon the authority of the
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Karnataka High Court on the legal validity of the registered transactions made 20-12- 2004. In this authority B. Savitharamma vs Hombakka and others 2018 (2) HLR 94 (Karn), Hon’ble High Court of Karnataka discussing the proviso to Section 6 (1) of
Hindu Succession Act, held as follows:
12. As rightly contended by learned counsel for appellant proviso to Section 6(1) clearly states that nothing contained in sub-section (1) shall affect or invalidate any disposition or alienation of the property that had taken place before 20th day of December, 2004. In the instant case, the sale had taken place on 30.04.2004 well prior to the cut off date provided in the proviso. This is evident from Ex.P8 - Sale Deed produced by the plaintiff in her evidence. Therefore, on her own showing and based on the pleadings and the evidence of the plaintiff herself, the property which had been sold prior to 20.12.2004 could not have been the subject matter of any claim by the plaintiff by way of partition. The property was not available to the family as on the cut off date because it had been disposed of by way of sale by that time. Therefore, question of maintaining the suit seeking partition did not arise. Alienation RFA.1188/2015 c/w. RFA.1189/2015 made prior to 20.12.2004 is saved. Hence, in our view, the Trial Court has committed a serious error in completely ignoring the provisions contained under Section 6(1) of the Act, particularly the proviso enacted therein.
53.In view of my above discussion, the following conclusions are drawn -
1. The joint family consisted of D1, his father and mother, his wife, his two daughters and one son. On death of his father, D1 became the Kartha of the family and the joint family was owning joint family immovable properties in
Schedules A and B and a house at Velimela Village.
2. The father of plaintiffs i.e. D1 along with his mother Marri Leelavathi and his son D2, sold some of the B schedule properties. The alienations were made even prior to the year 1990 and evidently, under registered sale deeds from the year 1990. The alienations were made only for the welfare and benefit of the
Page 38 of 48 OS 53 of 2007
XXV ACJ, CCC, HYD
joint family and more particularly for the marriage and education purposes of the plaintiffs and D2.
3. The several purchasers including some of the defendants in the suit have got their respective purchased lands mutated in their names, were/are in possession of their respective lands and are being recorded as such in the revenue records.
4. Plaintiffs having knowledge that they got an ancestral house at Velimela village failed to include the same in the suit without assigning any reason and the suit is bad for partial partition.
5. Some of the properties i.e. properties sold under table shown above were sold prior to 20-12-2004 under registered sale transactions. Said sale transactions are legally valid and binding on the other family members i.e. plaintiffs as stipulated under Section 6 of Hindua Succession Act, 1956 as amended in the year 2005. Thus, those properties are not available for partition and the suit is not maintainable against them.
6. Abandonment of part of the suit claim by the plaintiffs is not supported by any reason. It seen that only some of the B schedule properties were sold, some prior to 1990 and some after 1990. There is no evidence to show as to what are the properties still the joint family was holding as on the date of filing the suit.
Even if it is assumed that some of the suit schedule properties are shown to be available for partition, as the plaintiffs or for that matter, as D1 to D3 have failed to state as to how they dealt with the properties which they have abandoned, the remaining properties cannot be equitably divided and equities cannot be worked out.
54.In view of my above discussion and the conclusions drawn, I hold that the plaintiffs failed to proved that they are entitled for partition of suit A and B Schedule
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XXV ACJ, CCC, HYD
properties. These issues No.1 & 2 are decided against the plaintiffs.
Issue No.3:
55.In view of the findings given on Issues No.1 & 2 above, the suit of the plaintiffs fails and the same is liable to be dismissed.
56.IN THE RESULT, the suit is dismissed. Each party to bear their own costs.
Partly Dictated to the Stenographer, transcribed and typed by her, Partly Typed by Me, Corrected and Pronounced by Me in the Open Court, on this the 30th day of April, 2022.
Sd/-
XXV Additional Chief Judge, City Civil Court, Hyderabad.
APPENDIX OF EVIDENCE:
Witnesses examined:
For the plaintiffs: For the defendants:
PW1: M.Risha ReddyDW1: K.Ramachandraiah PW2: R.Buchaiah GoudDW2: M.Amarender Reddy DW3: M.Rama Kishore DW4: N.Venkata Ratnam DW5: B.Buchi Ramulu DW6: Mohd.Sharfuddin
Documents marked for the plaintiffs:
Ex.A1Certified copy of Registered Sale Deed bearing Doc.No.845/1965 dated 07-04-1965 along with photo copy of typed documents
Ex.A2Phattadhar pass book of Mr. Marri Krishna Reddy (D1) with patta No. 99 issued by MRO. Ramachandrapur
Ex.A3Title Deed pass book of Mr. Marri Krishna Reddy (D1) with patta No.99 issued Revenue Divisional Office, Sanga Reddy.
Ex.A4pattadar pass book of Mr. Randheer Reddy (D2) with patta No.417 issued by MRO, Ramachandrapur
Page 40 of 48 OS 53 of 2007
XXV ACJ, CCC, HYD
Ex.A5Title Deed pass book of Mr. Randheer Reddy (D2) with patta No.417 issued Revenue Divisional office, Sanga Reddy.
Ex.A6Rythu pass book in the name of Mr. Marri Krishna Reddy (D1)
Ex.A7Rythu pass book in the name of Mr. Marri B.Marri Narsimha Reddy
Ex.A8Rythu pass book in the name of Leelavathi Devi W/o Mr. Marri Narsimha Reddy
Ex.A9Bunch of property tax receipts
Ex.A10Notarized General Power of Attorney executed by Smt. Raveeta P. Reddy/plaintiff dt.10-01-2007
Ex.A11Market value certificate issued by Joint Sub-Registrar, Sangareddy dated 20-07-2015
Ex.A12Bunch of Market value certificate
Ex.A13Certified copy of Registered Sale Deed bearing Doc.No,1983/1990 dated 17-05-1990
Ex.A14Certified copy of Registered Sale Deed bearing Doc.No,2321/1990 dated 14-06-1990
Ex.A15Certified copy of Registered Sale Deed bearing Doc.No, 4042/1991 dated 26-12-1991
Ex.A16Certified copy of Registered Sale Deed bearing Doc.No, 2745/1983
dated 30-08-1983
Ex.A17Certified copy of Registered Sale Deed bearing Doc.No, 2747/1993
dated 30-08-1983
Ex.A18Certified copy of Registered Sale Deed bearing Doc.No.2748/1993 dated 30-08-1983
Ex.A19Certified copy of Registered Sale Deed bearing Doc.No, 2750/1993 dated 30-08-1983
Ex.A20Certified copy of Registered Sale Deed bearing Doc.No,2751/1993ated 30-08-1983
Ex.A21Certified copy of Registered Sale Deed bearing Doc.No,2753/1993 dated 30-08-1983
Ex.A22Certified copy of Registered Sale Deed bearing Doc.No. 2755/1993 dated 30-08-1983
Ex.A23Certified copy of Registered Sale Deed bearing Doc.No,.2756/1993 dated 30-08-1983
Page 41 of 48 OS 53 of 2007
XXV ACJ, CCC, HYD
Ex.A24Certified copy of Registered Sale Deed bearing Doc.No.2757/1993 dated 30-08-1983
Ex.A25Certified copy of Registered Sale Deed bearing Doc.No,.2758/1993 dated 30-08-1983
Ex.A26Certified copy of Registered Sale Deed bearing Doc.No.2761/1993 dated 30-08-1983
Ex.A27Certified copy of Registered Sale Deed bearing Doc.No. 2762/1993 dated 30-08-1983
Ex.A28Certified copy of Registered Sale Deed bearing Doc.No,.3485/1995 dated 06-07-1995
Ex.A29Certified copy of Registered Sale Deed bearing Doc.No.3484/1995 dated 06-07-1995
Ex.A30Certified copy of Registered Sale Deed bearing Doc.No.3638/1995 dated 20-07-1995
Ex.A31Certified copy of Registered Sale Deed bearing Doc.No,.3639/1995 dated 20-07-1995
Ex.A32Certified copy of Registered Sale Deed bearing Doc.No,.859/1998 dated 19-03-1998
Ex.A33Certified copy of Registered Sale Deed bearing Doc.No.4819/1998 dated 10-12-1998
Ex.A34Certified copy of Registered Sale Deed bearing Doc.No.4372/2000 dated 17-08-2000
Ex.A35Certified copy of Registered Sale Deed bearing Doc.No.4373/2000 dated 17-08-2000
Ex.A36Certified copy of Registered Sale Deed bearing Doc.No. 7096/2003
dated 07-08-2003
Ex.A37Certified copy of Registered Sale Deed bearing Doc.No. 7098/2003
dated 07-08-2003
Ex.A38Certified copy of Registered Sale Deed bearing Doc.No. 13693/2005
dated 10-10-2005
Ex.A39Certified copy of Registered Sale Deed bearing Doc.No. 11986/2005
dated 14-09-2005
Ex.A39Certified copy of Registered Sale Deed bearing Doc.No.11986/2005
dated 14-09-2005
Page 42 of 48 OS 53 of 2007
XXV ACJ, CCC, HYD
Ex.A40Certified copy of Registered Sale Deed bearing Doc.No. 10565/2005
dated 18-08-2005
Ex.A41Certified copy of Registered Sale Deed bearing Doc.No. 14146/2005
dated 19-10-2005
Ex.A42Certified copy of Registered Sale Deed bearing Doc.No. 14147/2005
dated 19-10-2005
Ex.A43Certified copy of Registered Sale Deed bearing Doc.No.14145/2005
dated 19-10-2005
Ex.A44Certified copy of Registered Sale Deed bearing Doc.No.14143/2005
dated 19-10-2005
Ex.A45Certified copy of Registered Sale Deed bearing Doc.No, 14144/2005
dated 19-10-2005
Ex.A46Certified copy of Registered Sale Deed bearing Doc.No. 10262/2005
dated 12-08-2005
Ex.A47Certified copy of Registered Sale Deed bearing Doc.No.8765/2005 dated 17-07-2005
Ex.A48Certified copy of Registered Sale Deed bearing Doc.No.5298/2005 dated 30-04-2005
Ex.A49Certified copy of Registered Sale Deed bearing Doc.No.10043/2005
dated 31-05-2005
Ex.A50Certified copy of Registered Sale Deed bearing Doc.No. 5051/2003
dated 05-06-2003
Ex.A51Certified copy of Registered Sale Deed bearing Doc.No.8772/2005 dated 11-07-2005
Ex.A52Certified copy of Registered Sale Deed bearing Doc.No.5050/2003 dated 05-06-2003
Ex.A53Certified copy of Registered Sale Deed bearing Doc.No.8773/2005 dated 11-07-2005
Ex.A54Certified copy of Registered Sale Deed bearing Doc.No.7099/2003 dated 07-08-2003
Ex.A55Certified copy of Registered Sale Deed bearing Doc.No.576/1998 dated 19-02-1998
Ex.A56Certified copy of Registered Sale Deed bearing Doc.No.2726/1993 dated 30-08-1993
Page 43 of 48 OS 53 of 2007
XXV ACJ, CCC, HYD
Ex.A57 Ceiling declaration of Mr. M.Narsimha Reddy and Leelavathi Devi.
Ex.A58Declaration in Form -I filed by Marri Krishna Reddy, Mrs. Sumathi and 3 others.
Ex.A59 Certified copy of order dated 19-01-1978 in Civil Revision Petition No. 1856/1977, on the file of the Hon’ble High Court of A.P.
Ex.A60 Certified copy of Revenue Record in two pages.
Ex.A61 Ceiling declaration of Mr. Krishna Reddy and others.
Documents marked for the defendants:
Ex.B1Certified Copy of Sale Deed No. 2321/1990
Ex.B2Certified Copy of Sale Deed No.4042/1991
Ex.B3Certified Copy of Sale Deed No. 859/1998
Ex.B4Certified Copy of Pahani for the year 1992-93 stands in the name of Defendant No.5 in respect of item No.19
Ex.B5Certified Copy of Pahani for the year 1994-95 stands in the name of Defendant No. 5 in respect of item No.19
Ex.B6Certified Copy of Pahani for the year 1999-2000 stands in the name of Defendant No. 5 in respect of item No.19
Ex.B7Certified Copy of Pahani for the year 2005-2006 stands in the name of Defendant No. 5 in respect of item No.19
Ex.B8Certified Copy of Pahani for the year 2010-2011 stands in the name of Defendant No. 5 in respect of item No.19
Ex.B9Certified Copy of Pahani for the year 2014-2015 stands in the name of Defendant No. 5 in respect of item No.19
Ex.B10Certified Copy of Pahani for the year 1992-93 stands in the name of Defendant No. 6 to 11 in respect of item No.2 &21.
Ex.B11Certified Copy of Pahani for the year 1994-95 stands in the name of Defendant No. 6 to 11 in respect of item No.2 &21.
Ex.B12Certified Copy of Pahani for the year 1999-2000 stands in the name of Defendant No. 6 to 11 in respect of item No.2 & 21.
Ex.B13Certified Copy of Pahani for the year 2005-2006 stands in the name of
Page 44 of 48 OS 53 of 2007
XXV ACJ, CCC, HYD
Defendant No. 6 in respect of item No.2 & 21.
Ex.B14Certified Copy of Pahani for the year 2010-11 stands in the name of Defendant No. 6 to 11 in respect of item No.2 & 21.
Ex.B15Certified Copy of Pahani for the year 2014-15 stands in the name of Defendant No. 6 to 11 in respect of item No.2 & 21.
Ex.B16Certified Copy of Sale Deed No. 4773/1998
Ex.B17Certified Copy of Sale Deed No.4373/2000
Ex.B18Certified Copy of Sale Deed No.4372/2000
Ex.B19Original Copy of Mutation Proceedings issue by the MRO dated 28.04.2003 in favour of Defendant No. 32.
Ex.B20Original Old Pattadar Pass Book issued by the Revenue authorities in favour of Defendant No. 32.
Ex.B21Original Old Title Book issued by the Revenue authorities in favour of Defendant No.32.
Ex.B22Original new pattadar Pass Book issued by the Tahsildar authorities in favour of Defendant No.32.
Ex.B23Original new Pattadar pass Book issue by the Revenue authorities in favour of Defendant No. 33.
Ex.B24Original new Pattadar pass Book issue by the Revenue authorities in favour of Defendant No. 34.
Ex.B25Certified Copy of Sale Deed bearing No. 2746/1993
Ex.B26Certified Copy of Sale Deed No.2747/1993
Ex.B27Certified Copy of Sale Deed No.2748/1993
Ex.B28Certified Copy of Sale Deed No.2749/1993
Ex.B29Certified Copy of Sale Deed No.2750/1993
ExB30Certified Copy of Sale Deed No.2751/1993
Ex.B31Certified Copy of Sale Deed No.2745/1993
Ex.B32Certified Copy of Sale Deed No.9202/2003
Ex.B33Certified Copy of Sale Deed No.5050/2003
Ex.B34Certified Copy of Sale Deed No.5051/2003
Ex.B35Certified Copy of Sale Deed No.7099/2003
Ex.B36Certified Copy of Sale Deed No.7096/2003
Page 45 of 48 OS 53 of 2007
XXV ACJ, CCC, HYD
Ex.B37Certified Copy of Sale Deed No.7098/2003
Ex.B38Certified Copy of Sale Deed No.8772/2005
Ex.B39Certified Copy of Sale Deed No.8773/2005
Ex.B40Certified Copy of Sale Deed No.10264/2005
Ex.B41Certified Copy of Sale Deed No.13693/2005
Ex.B42Certified Copy of Encumbrance of property dt.20.02.2019 (5 No.s)
Ex.B43Certified Copy of Khasara Pahani for the year 1955/58
Ex.B44Certified Copy of Cesala Pahani for the 1954/55
Ex.B45Certified Copy of pahani for the year 2017 (5 No.s)
Ex.B46Certified Copy of ROR Proceedings for the year 1979-80 (4 No.s)
Ex.B47Certified Copy of Pahani for the year 1995-96 (No.s)
Ex.B48Certified Copy of pahani for the year 2005-2006 (4 No.s)
Ex.B49Certified Copy of pahani for the year 2000-2001 (4 No.s)
Ex.B50Certified Copy of pahani for the year 1961-1962 (1 No.s)
Ex.B51Certified Copy of pahani for the year 2016-2017 (3 No.s)
Ex.B52Certified Copy of pahani for the year 2014-2015 (3 No.s)
Ex.B53Certified Copy of pahani for the year 2010-2011 (3 No.s)
Ex.B54Certified Copy of pahani for the year 1982-83 (4 No.s)
Ex.B55Certified Copy of pahani for the year 1991-92 (5 No.s)
Ex.B56Certified Copy of pahani for the year 1974-75 (4 No.s)
Ex.B57Certified Copy of pahani for the year 1966-67 (3 No.s)
Ex.B58Original Electricity Bill dated 02-2019 (3 Nos) with service No. 990601410, 090600894, 990601409
Ex.B59Certified Copy of Sale Deed No. 10550/2009 dt.20-11-2009
Ex.B60Building Sanction Plan 326/A at Velimela Village
Ex.B61Building sanction plan 326/A at Velimela Village
Ex.B62Original ROR bearing No, B/4144/2009 issued by MRO Ramachandrapuram Mandal
Ex.B63Original ROR bearing No, B/5890/2009 issued by MRO Ramachandrapuram Mandal
Page 46 of 48 OS 53 of 2007
XXV ACJ, CCC, HYD
Ex.B64Original Panchanama Copy
Ex.B65Print out of SSI Industry Electricity Bill.
Ex.B66Original power allocation letter No. S/OP/MDK/ADE/Comml/F.No/D.No.4175 dated 20.02.2010 issued by Central Power Distribution Company of A.P
Ex.B67Original NOC issued by Velimala Grampanchayat
Ex.B68Original receipt bearing No. 3742 of Building Sanction Fees issued by Velimala Grampanchayat
Ex.B69Original Property Tax Receipt bearing No. 6474.
Ex.B70Original Factories Approval LR number D.DIS.F1/SR-1/10322/2010
Ex.B71Original Proceedings issued by Velimala Grampanchayat bearing No.GPV/49/2010
Ex.B72Acknowledgment issued by A.P. Pollution Control Board.
Ex.B73Certified Copy of Sale Deed bearing No,10551 of 2009
Ex.B74Certified Copy of Sale Deed bearing No.22813/2007
Ex.B75ROR year 1979-80
Ex.B76pahanies for the year 1982-83
Ex.B77pahanies for the year 1985-86
Ex.B78pahani for the year 1991-92
Ex.B79Dhruva Patram issued by MRO Ramachandrapuram, Sanga Reddy, Medak Dist
Ex.B80Certified Copy of ROR for the year 1989-90
Ex.B81Certified Copy of Pahani for the year 1997-98
Ex.B82Certified Copy of Pahani for the year 1999-2000
Ex.B83Certified Copy of Pahani for the year 2002-2003
Ex.B84Certified Copy of Pahani for the year 2003-2004
Ex.B85Certified Copy of Pahani for the year 2004-2005
Ex.B86Certified Copy of Pahani for the year 2006-2007
Ex.B87Certified Copy of Pahani for the year 2007-2008
Ex.B88Certified Copy of Pahani for the year 2008-2009
Ex.B89Certified Copy of Pahani for the year 2010-2011
Page 47 of 48 OS 53 of 2007
XXV ACJ, CCC, HYD
Ex.B90Certified Copy of Pahani for the year 2011-2012
Ex.B91Certified Copy of Pahani for the year 2012-2013
Ex.B92Certified Copy of Pahani for the year 2013-2014
Ex.B93Certified Copy of Pahani for the year 2014-2015
Ex.B94Certified Copy of Pahani for the year 2015-2016
Ex.B95Certified Copy of Pahani for the year 2016-2017
Ex.B96Certified Copy of Pahani for the year 2018-2019
Ex.B97Certified Copy of Pahani for the year 2019-2020
Ex.B98Certified Copy of IB Namuna of the Defendant No. 25
Ex.B99Certified Copy of IB Namuna of the Defendant No. 26
Ex.B100Certified Copy of pahani for the year 1993-94
Ex.B101Certified Copy of pahani for the year 1994-95
Ex.B102Certified Copy of pahani for the year1995-96
Ex.B103Certified Copy of pahani for the year1996-97
Ex.B104Certified Copy of pahani for the year2000-2001
Ex.B105Certified Copy of pahani for the year 2003-2004
Ex.B106Certified True Copy of File No. D/426/89, under sections 10,11,12,13, of ROR Act 1971, issued by MRO, Ramachandrapuram Mandal (Total 22 pages)
Ex.B107Certified Copy of reg. Sale Deed No. 3484/1995
Ex.B108Certified Copy of reg Sale Deed No.3484/1995
Ex.B109Certified Copy of reg. Sale Deed No.1644/1999
Ex.B110Certified Copy of reg. Sale Deed No.2270/1999
Ex.B111Certified Copy of reg Gift Settlement Deed No. 1094/2000
Ex.B112Certified Copy of reg. Sale Deed No.22813/2007
Ex.B113Certified Copy of reg. Sale Deed No.10550/2009
Ex.B114Encumbrance Certificate for Land in Survey No. 323
Ex.B115Encumbrance Certificate for Land in Survey No. 326
Ex.B116Certified Copy of the registered Sale Deed dated 17.05.1980 executed by Defendant No.1 in favour of Defendant No, 4.
Page 48 of 48 OS 53 of 2007
XXV ACJ, CCC, HYD
Ex.B117Certified Copy of the 13 (c) Form under which Defendant No.1 purchased item No.46 of B schedule from the ancestors of the Defendant No.4
Ex.B118Certified Copy of the 13 (B) Form under which MRO has validated the private Sale Deed in respect of item 46 of B schedule in favour of Defendant No.1
Sd/-
XXV Additional Chief Judge, City Civil Court, Hyderabad.
IN THE COURT OF XXV ADDITIONAL CHIEF JUDGE, CITY CIVIL COURT
AT HYDERABAD
FRIDAY, THIS THE 29TH DAY OF APRIL, 2022
PRESENT: SMT. B. PRATHIMA XXV Additional Chief Judge
ORIGINAL SUIT No. 634 of 2010
Between:
Battula Satyavathi W/o Late B. Muralikrishna, aged about 42 years, Occ: Proprietor, Vijaya Enterprises, 29-11, Sheshadri Sastry Street, Governorpet, Vijayawada and also Branch office at D.No.1-1-189/10/1, Street No.6, Vivekanagar, Chikkadpally, Hyderabad-500020.
….Plaintiff
AND
1. M/s. Pavan Industries, represented by its proprietor Sri Pavan Kumar Panwar, S/o not known, aged about 52 years, Occ: Business, having its main office at 15-8-450, K.K. Complex, Near Santhoshi Maatha Temple, Feel Khana, Hyderabad-500012.
And also at D.No.15-1-421, Feel Khana, Hyderabad-500012 and also at Plot No.23, IDA, Road No.9, old Kurnool Road, Kattedan, R.R.District, Hyderabad.
2. Goutam Kumar Babulal, aged about 55, years, Occ: Business, R/o. 98/3/1/2, Billekahalli, Bannergatta Road Cross, Bangalore-560076. (deleted as per court order dt.03-02-2011)
3. Suresh kumar Lalwani Jain S/o Srimalijee Lalwani Jain, aged about 57 years, R/o H.No.15-1-52, Flat No.306, 4th floor Sukhshanti Apartments, Old Feelkhana Begum Bazar, Hyderabad-12 (T.S) (defendant No.3 is added as per orders in IA No.1801/2017 dated 13-12-2017) ….Defendants
This Suit came before me for final hearing and disposal in the presence of Ms.E.Kalpana Ekbote, Advocate for the Plaintiff and of Sri K.Hemaprakasa Rao, Advocate for the Defendants, upon hearing both the counsel and on perusing the material available on record and the matter having stood over for consideration till this day, the Court delivered the following:
Page 2 of 48 OS 634 of 2010
XXV ACJ CCC HYD
:: J U D G M E N T ::
1.Sole plaintiff filed the suit against the defendants seeking the relief of perpetual injunction restraining the defendants from infringing the trade mark and copy right of the plaintiff.
Plaint averments in brief:
2.1M/s. Vijaya Enterprises was a proprietorship concern of late B. Muralikrishna who expired on 06-03-2007 leaving behind three legal heirs Wife Battula Satyavathi, daughters Battula Sirisha and Battula Siva Jyothi. Battula Sirisha and Battula Siva
Jyothi relinquished their share in the property and assets in favour of their mother i.e., plaintiff. Plaintiff permitted M/s. Vijaya Agencies Private Limited to use the trade mark “ GANGA”. Plaintiff is Managing Director of said company.
2.3Plaintiff is an old established and reputed manufacturer and trader and has been engaged in the business of manufacturing and trading of household and kitchen ware and electronic apparatus and instruments like mixies, mixer-grinders, grinders, food processing machines, washing machines iron boxes, electric gas lighters, ceiling fans etc., they are referred as goods. Plaintiff has been carrying business since 1983. Due to the superior quality and high efficacy of their goods, plaintiff acquired immense reputation and good will.
2.4Late B. Muralikrishna coined the trade mark “GANGA” on or about 16-06- 1984. Before using the trade mark GANGA, he extensively searched the records of trade marks registry and after satisfying that there are no such users and no such registration is made, he adopted the trade mark.
Page 3 of 48 OS 634 of 2010
XXV ACJ CCC HYD
2.5On June 26, 2000 Mr Muralikrishna applied for registration of said trade mark under application Nos.934652 in Class-07, 934653 in Class-09, 934654 in Class-11 and 934655 in Class-21. He died during the subsistence of registration proceedings.
The Registrar of the trade marks registered the plaintiff as the registered proprietor of the trade mark and issued certificate on 03-10-2008. In terms of Section 23 (1) of the
Act the date of making application shall be deemed to be the date of registration and hence, the trade mark goes back to 26-06-2000 which was renewed for a period of 10 years. The trade mark GANGA was given with emblem that depicted GANGA water.
Plaintiff is also the subsequent proprietor of the trade mark GANGA under registration
No.593203 in Class-07.
2.6Plaintiff also succeeded to all the rights in the artistic work having trade mark
GANGA as one of its features which is registered with the Registrar of Copyrights under Registration No.A-64302/2003, and A-64304/2003. Mr. Muralikrishna acquired rights from M/s. Vijaya Enterprises Private Limited by virtue of deed of assignment dt.21-08-2006 requesting for effecting in the Register of Copyrights is pending with the Registrar of Copyrights, Delhi. However, it is only procedural and it is formality as plaintiff succeeded as legal heir already succeeded of late Muralikrishna. The trade mark GANGA is widely and openly used in the relevant segment of the public by
Muralikrishna from 06-03-2007 and thereafter by the plaintiff continuously.
2.7Plaintiff issued a caution notice dt.17-11-2008 in two daily newspapers “Eenadu” and Deccan Chronicle” English daily. When it came to notice that rival manufacturers were using the emblem as they are trade mark GANGA similar to the plaintiff goods. One of the distributors of plaintiff sent the copy of the registration certificate of defendant Registered Trade Mark. Plaintiff on enquiry came to know that the trade mark was registered and published in Trade Marks Journal No. MEGA 2,
Page 4 of 48 OS 634 of 2010
XXV ACJ CCC HYD
Dt.25-09-2003 that application was made on 26-7-2001 and 2nd defendant claimed the use of trade mark since 04-01-2001 and registration certificate has been issued in
November, 2004 in favour of 2nd defendant, but 2nd defendant never used the trade mark though it was registered and assigned to 1st defendant with registration
No.1066181 for Class 11 and Trade Mark No.1030890 for Class 21. Both the defendants have no registration under Class 7 and 9. Plaintiff also came to know that 2nd defendant is manufacturing LPG gas stoves and 1st defendant is selling them.
2.8Plaintiff filed an application for rectification of the Register before the Registrar of Trade Mark and it is pending for enquiry. Recently plaintiff came to know that 2nd defendant assigned the trade mark to 1st defendant. Defendants obtained the registration of the impugned trade mark by playing fraud, concealing material from the
Registrar of Trade Marks. At the time of filing application for registration of trade mark one is required to state that he is proprietor of trade mark. Defendants are not the proprietors of Trade Mark of GANGA.
2.9Plaintiff has been openly, regularly and extensively using said mark ‘GANGA’ since 1984 in respect of its goods and has acquired reputation and goodwill in the market. In such circumstances, any alleged used of impugned registered trademark ‘Akash GANGA’ by the defendants is likely to cause confusion and deception amongst the members of the trade and the public as to the trade origin of plaintiff’s goods bearing registered trademark ‘GANGA’. A bare perusal of both the marks would show that defendants have been using the mark which is visually and phonetically identical to that of the mark of the plaintiff. Defendants have recently started using the mark ‘Akash GANGA’ for the very same goods that are being manufactured and marketed by the plaintiff with a view to deceive the public as well as to usurp the goodwill of plaintiff. Having regard to the goodwill and reputation acquired by plaintiff in
Page 5 of 48 OS 634 of 2010
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trademark ‘GANGA’, the use of impugned registered trademark mark by defendants is likely to result in passing off and if the defendants are not restrained from using the trademark ‘GANGA’, the plaintiff will suffer huge loss.
2.10Plaintiff has been using the trademark of ‘GANGA’ extensively in the print media as well as electronic media, but the defendant never advertised either in print media or in the electronic media that it is the original manufacturer of the products bearing the trademark ‘GANGA’ and thereby riding on the back of plaintiff. After coming to know that some of the manufacturers are using ‘GANGA’ for their goods, plaintiff lodged complaint with the Central Task Force and action was initiated against two dealers who are selling the products under the name ‘GANGA’. Recently plaintiff came to know that defendants are using trademark ‘Akash GANGA’ which is deceptively similar to the mark of plaintiff, when the defendants gave a press statement in Andhra Jyothi on 24-10-2010 claiming that their products and the products of plaintiff are different and further claimed that they are using the trademark ‘Akash GANGA’ for household items. Due to the usage of trademark of the plaintiff by the defendant by prefixing ‘Akash’ to the plaintiff’s mark ‘GANGA’, defendants have been cheating the public thereby causing loss not only to the goodwill of plaintiff, but also to the sales of plaintiff. Mere registration of the trademark is not a bar for filing a suit for passing off. The plaintiff is prior used of trademark ‘GANGA’ since 1984. Hence, the suit.
Written Statement Averments:
3.1It is not out of place to submit that the mark ‘GANGA’ being the name of holy river is not entitled to be registered in respect of any goods or services. Even otherwise, the artistic work which the defendant has been using in his trademark is distinctly different from what the plaintiff claims to have been using. A close perusal
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of the invoices for the period from 1984-2009 filed by the plaintiff standing in the name of Vijaya Enterprises, Vijayawada of which she claims to be the proprietor reflect the firm had been sole distributor for Andhra Pradesh. There is no impression of said invoices that said firm has been using mark ‘GANGA’ as proprietor of the mark.
Neither Vijaya Enterprises nor its proprietor was ever proprietor of the mark. It is ridiculous for the plaintiff to claim that she has authorized the company Vijaya
Enterprises to use the trademark ‘GANGA’. Neither the plaintiff nor her predecessor in title are proprietor of the mark ‘GANGA’. Defendant, therefore challenges the validity of registration of plaintiff’s trademark and proposes to initiate rectification proceedings for cancellation of said registration.
3.2Plaintiff cannot plead ignorance to the fact that each of the marks are published in the Trademarks Journal before they are registered. It is clear that plaintiff waited till registration certificates in respect of applications were issued and then only contemplated action against the defendant. The assignment of mark ‘Akash GANGA’ to defendant by his predecessor in title in respect of registered mark Nos.1066181 and 1030890 took place in the year 2007 itself. The same can be accessed from the public domain and get in Trademarks Registry. The defendant’s mark being inherently distinctive vis a vis, the goods in relation to which either his predecessor in title or by himself have sought the registration of the mark ‘Akash GANGA’ and that the Registry only after getting convinced that no conflicting marks are on the records of the
Trademarks Registry and that defendant or his predecessor in title have proved the ownership thereto went ahead with the publication of the trademark ‘Akash GANGA’ in Trademark Journal.
3.3The Trademarks Registry did not cite GANGA as conflicting mark in its examination report while examining the two applications in Class-21 and Class-9 only
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with a considered opinion that ‘GANGA’ and ‘Akash GANGA’ are distinctly different from each other. It is denied that plaintiff had been openly, regularly and extensively using the mark ‘GANGA’ since 1984. None of the documents except registration certificate reveal that plaintiff or her predecessor in title have ever used the mark ‘GANGA’ as owner. The defendant had been using the mark ‘Akash GANGA’ openly, extensively and continuously without any interruption from anyone ever since its inception in the year 2001. It is denied that use of the impugned trademark likely to result in passing off having regard to the goodwill and reputation acquired by the plaintiff in the trademark ‘GANGA’. The growth in sales of goods bearing mark ‘Akash GANGA’ is purely because of the efforts put by the defendant. Hence, the pleading of prior user is not available to the plaintiff in view of the marks being distinct and different. Consequently the action for passing off is not maintainable.
Plaintiff admittedly came to know about existence of the mark in the year 2008 and it does not lie in the mouth of the plaintiff to say that defendant has commenced using his mark only recently. Plaintiff is not entitled to claim any loss of business nor can she claim damages. Hence, suit may be dismissed.
Written Statement Averments of Defendant No.3:
4.1Defendant No.2 became sole owner of trademark ‘Akash GANGA’ by virtue of
Deed of Assignment dated 01-07-2017 executed by defendant No.1. Consequent to execution of said Deed of Assignment, defendant No.2 is contemplating to file necessary applications before the Registry of Trademarks, Chennai to bring his name on the register of Trademarks in respect of registered trademark Nos.1066181 in Class- 11, 1030890 in Class-21, 1258021 in Class-07 and 1476657 in Class-11 and defendant
No.2 stepped into show of defendant No.1. All other averments are same as in the written statement filed by defendant No.1.
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5.Basing on the above pleadings, the following issues were settled for trial on 18- 07-2011:
1. Whether the plaintiff was (sic ‘is’)entitled for permanent injunction as prayed for?
2. Whether the plaintiff was entitled for a direction to
defendants to surrender all printed matter lying with them
including packing material, name boards, banners, etc., as
prayed for?
3. Whether the suit is barred by limitation?
4. To what relief?
6.During trial, on behalf of plaintiff, PW1 was examined and Ex.A1 to A59 were marked. On behalf of defendants, DW1 is examined and Ex.B1 to B29 were marked.
7.Heard both side counsel. I have also gone through the Written arguments filed on behalf of both sides.
Issues No.1 to 3:
8.According to the plaintiff, it is the registered proprietor of trademark ‘GANGA’ vide Ex.A1 to A6 certificates in Classes No.7, 9, 11 and 21 with the given visual depiction, font, size and color, that plaintiff’s predecessor and husband of PW1 late
B.Muralikrishna coined the trademark ‘GANGA’ independently after carrying on due search as required in the field, that the trademark ‘GANGA’ came to be associated with the goods manufactured by the plaintiff and its predecessor in title, that the registration certificates were given in respect of trademark. They are Ex.A1 dt.03-10-2008 in Class
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7, Ex.A2 dt.03-10-2008 in Class 9, Ex.A3 dt.29-10-2010 in Class 9. Ex.A4 dt.19-10- 2010 in Class 21, Ex.A5 dt.19-10-2010 in Class 21, Ex.A6 dt.29-10-2010 in Class 21.
9.Plaintiff further claims that though Ex.A1 certificate was granted on 03-10- 2008 in terms of sub section 23(1) of the Trademarks Act, it relegates back to the date of application which is 26-06-2000 and even otherwise, they are the prior user of the trademark from the year 1984. Regarding the artistic work of the trademark ‘GANGA’, plaintiff claims that the copyright was registered with the Registrar of Copyrights vide
Ex.A44, A45 and A46. Plaintiff claims that the predecessor in business of the plaintiff
B.Muralikrishna acquired the artistic work from M/s Vijaya Enterprises Limited by virtue of Deed of Assignment dated 21-08-2006, that he died on 06-03-2007 and plaintiff being legal heir of B.Muralikrishna succeeded to all the properties including the trademark and copyright.
10.Plaintiff further claims that it was using the trademark and copyright continuously, that wide publicity and caution was given in Eenadu and Deccan
Chronicle newspapers, that plaintiff came to know that plaintiff’s trademark was being copied, that impugned registered trademark of defendant No.1 was published in Trade
Marks Journal No.MEGA 2 dated 25-09-2003 and the date of application of impugned registered trademark was 26-07-2001, that defendant No.2 never used this trademark though it was registered under Class-21, that defendant No.2 is only manufacturer and defendant No.1 is selling the products manufactured, that plaintiff had filed an application for rectification before the Registrar of Trademarks, which is pending inquiry.
11.Plaintiff further claims that the defendants are not proprietor of impugned trademark ‘Akash GANGA’ and any registration obtained in the places of claim made by the defendant is suppressing the fact about the original prior ownership, that the
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defendant’s registered trademark ‘Akash GANGA’ is likely to cause confusion and deception among the trade and public.
12.Plaintiff next alleged that the impugned mark ‘Akash GANGA’ is visually and phonetically identical to the mark of the plaintiff. Plaintiff also claimed that they are prior owners, that they are spending crores of rupees for advertisement, that they have earned huge goodwill and reputation in the trademark ‘GANGA’ with the given description, that trademark ‘GANGA’ came to be associated with the plaintiff’s products. that by use of trademark ‘GANGA’ by prefixing the word ‘Akash’, defendants are cheating the public and hence, they filed the suit seeking to restrain the defendants from using the trademark ‘GANGA’ including the artistic work.
13.Defendant appeared through counsel and filed a detailed written statement, the sum and substance of which is that ‘GANGA’ being the name of river cannot be used as trademark and word label, that the trademark of defendants is a two worded trademark ‘Akash GANGA’, that the defendant is the prior user of the trademark, that even otherwise, the pleading of the plaintiff as prior user is of no consequence as the trademark of the plaintiff and the trademark of defendant are distinctly different.
14.Nextly, defendant claims that there is no fraud or deception played upon by the defendants, that plaintiff might have been user of the word label ‘GANGA’ for their products, that where number of products in the same Class are in the market with trade name ‘GANGA’ with word suffixed or prefixed to it, in a suit for passing off, the plaintiff shall establish that due to the use of the trademark by the defendant, there was loss to goodwill or reputation of the plaintiff, but the plaintiff failed to prove any such loss and even otherwise the mark GANGA is generic and it became publici juris.
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15.Defendants further claim that if there had been conflict in the mark, the
Registrar of trademarks would have pointed out the same while inquiring for grant of trademark to the defendants and as the Registrar upon finding no conflict in the trademark granted to the plaintiff and for the trademark sought by the defendant, the
Registrar had ordered that defendant can be granted the trademark ‘Akash GANGA’ with the given word depiction, font and logo. Defendant also claimed that the records maintained by the defendants show that defendant No.1 has been using a distinctive two worded mark from the year 2001, that they have given the yearly turnover in the written statement for promoting the goods, that defendant No.1 had also been investing substantial amounts in promoting their trademark and maintained the quality of the goods manufactured by them, that the purchasing public sufficiently distinguish the mark of defendant No.1 from the other marks existing in the market, containing the word ‘GANGA’ with or without suffix or prefix.
16.Defendants further submitted that even otherwise, there are latches on the part of plaintiff, that it is the defendant which first issued notice in newspapers on 23-01- 2008 in Swatantra Barathi and daily Hindi Milap cautioning the offending traders to be wary about the goods bearing fraudulently similar marks as that of registered trademark of the defendant and the action initiated by the plaintiff is vitiated by delay and acquiescence.
17.Defendants further claim that even otherwise, plaintiff has been using its trademark only for water filter candles and not for other goods in the given Class and it cannot be stated that plaintiff acquired immense reputation and goodwill in respect of manufacturing said goods in the given Class. Defendants also claim that plaintiff is well aware of the use of the mark by the defendant and having let him conduct the
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business all these years, plaintiff cannot file the suit without seeking damages alleging action of passing off.
18.Lengthy written arguments are submitted by both side counsel and I have gone through them. Gist of arguments of the learned counsel for the plaintiff is that -
1. late B. Muralikrishna, husband of plaintiff coined the trade mark GANGA independently and honestly after extensive research.
2. That the trademark GANGA is associated with the plaintiff since long, openly and regular extensive sales of these goods of plaintiff became inalienably associated with the plaintiff.
3. That Ex.A1 to A5 are the registration certificates of trademark of plaintiff in
Class 7, 9, 11 & 21.
4. That when Ex.A1 to A5 are compared with the certificates of defendants got marked as Ex.B2 to B8, only the word AKASH GANGA was registered in favor of the defendants whereas, registration in favor of plaintiff is for the word
GANGA along with pictorial depiction of GANGA Mata.
5. That neither of the defendants have any registration in Class 7 & 9.
6. That the goods of the plaintiff are in market with the trademark GANGA, but defendants at the time of registration concealed the facts before the Registrar.
7. There is no evidence of usage of the trademark by the defendant prior to 2006.
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8. Plaintiff proved that she is the prior user of the trademark since it is being used by them from the year 1984 which is evident from the registration certificates and the other documents filed, more particularly Ex.A53, A55, A57 and A59 and the copy right was obtained in the year 2003 under Ex.A44 to A46.
9. The claim of the defendants that their mark AKASH GANGA is a two letter word and it is inherently distinctive is not correct.
10.The sales invoices of the plaintiff filed vide Ex.A16 to A41 for the years from 2002 to 2010 show the business of the plaintiff which is in crores whereas the documents of the defendants show their business only from 2006-07 and that it doubled in the next year which show that the defendants have been usurping the good will and reputation of the plaintiff.
11. The mark of the plaintiff and the mark of the defendants have to compared as a whole and from the view and first Impression of a person of average intelligence and imperfect recollection.
19.Arguments of learned counsel for the plaintiff is elaborately rebutted by the learned counsel for the defendants on the following aspects:
1. The suit is not maintainable under Order VII Rule 7 for want of specific relief in the prayer.
2. Plaintiff has not locus standi to file the suit as plaintiff firm ceased to be in existence much before filing the suit.
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3. The cause of action as contained in the plaint fails to constitute a proper cause of action.
4. GANGA as trademark can be used by anyone as it is not a word coined by the plaintiff or invented by the plaintiff and that it is a generic word.
5. Plaintiff failed to prove that it is prior user of the trademark and that the mark acquired distinctiveness.
6. Plaintiff failed to prove any dent in the goodwill or reputation of the plaintiff.
7. That in the first place plaintiff played fraud in obtaining the registrations which are impeachable on the grounds that the i) registrar was misled with false evidence vis a vis the user of the mark ii) it is a conceded fact that the plaintiff had not been using the mark in respect of all the goods covered under the registrations from the year 1984.
8. That the defendant acquired distinctiveness for its mark AKASH GANGA, which mark was conceived and adopted by the defendants for various household durables like stoves, pressure cookers, mixer grinders etc.
9. That the plaintiff failed to prove the necessary ingredients for bringing an action of passing off as laid down in Heinz Italia vs B Dabur AIR 1007 SC W 3615.
10.The suit of the plaintiff is vitiated by laches and acquiescence on part of the plaintiff. That the plaintiff waited for nearly 9 years from the date of registration of the trademark in the name of the defendants in the yea r2001 till the date of filing the suit in the yea 2010 and it non suits the plaintiff.
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11. That the documentary evidence at the most shows that the plaintiff is not a prior user and the plaintiff and defendants are using their marks from the year 2001 and they are contemporaneous users.
20.On the first ground that there is no specific relief in the prayer of the suit, it is seen from the plaint that the prayer sought is to grant the relief of perpetual injunction restraining the defendants from infringing the trademark of the plaintiff and passing off the goods of the defendants as that of the goods of the plaintiff as alleged in the plaint. It is the argument of the learned counsel for the defendants that the relief sought in the plaint is not specific, that the relief sought is rather vague and covers all the trademarks that exist or an exist or come into existence under the Sun, which is not permissible. This court observes that there is specific relief sought in the plaint. It is a matter of trial as to the grant or refusal of the relief sought and it is to be seen whether the relief can be given to the plaintiff and if yes, what is the relief to be given?
21.The next objection to the suit is that the plaintiff has no locus standi to file the suit, Learned counsel for defendant vehemently submitted that during her cross examination, PW1 admitted that the plaintiff’s enterprise M/s Vijaya Enterprises has been converted into a company in the year 2009 itself, thus by said date, plaintiff who claims to be registered owner of the trademark has no locus standi to file the suit and sought to dismiss the suit. The claim of the plaintiff is that her husband was the owner of the registered trademark, that on the death of her husband it devolved on her and her two daughters, that her two daughters relinquished their right in this asset in her favor, that she is doing the business as the proprietor of Vijaya Enterprises and she is the owner of the trademark.
22.Evidently, plaintiff Battula Satyavathi filed the suit and it is not the proprietary concern which filed the suit. It is seen from the registration certificates and other
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documents filed by the plaintiff that the plaintiff Battula Satyavathi trading in the name of Vijaya Enterprises is shown as the owner of the trade mark. Hence, as per records, plaintiff is the owner of the trademark GANGA. As such, plaintiff can file the suit.
23.Further more, Ex.B1 is got marked by the defendant. It is filed as copy of application in Form TM-28 said to have been submitted by the plaintiff for registration of registered user of the trademark. This document was marked through confrontation to PW1. As per this document, the application was made by Vijaya Enterprises referred as licensor and proprietress of trademark ‘GANGA’ under registration Nos.934652 (Class-7), 934653 (Class-9), 1754331 (Class-7), 1754338 (Class-9), 1754333 (Class-
11) and 1754334 (Class-21) and by M/s Vijaya Agencies Private Limited is referred as licensee and company registered under the Companies Act, 1956. This application was filed under Section 49 Rule 80 of the Trademarks Act, 1999 for registration of registered user.
24. B. Satyavathi, the proprietor of M/s Vijaya Enterprises who is the plaintiff herein is shown as licensor and B. Satyavathi is shown as Director of M/s Vijaya
Agencies Private Limited, the licensee. The details of the registered trademark are appended to this and they are all of trademarks with work label ‘GANGA’ in Classes 7, 9, 11, 21. Thus, as per this document, Battula Satyavathi is still shown as the registered user of the trademark and she is shown as the licensor and the Company M/s Vijaya
Agencies Private Ltd. Is shown as Licensee. Thus, plaintiff is the registered owner of the trademark and I hold that she got every right to file this suit.
25.Regarding the argument of the leaned counsel for the defendants that there is no entity as Vijaya Enterprises as on the date of filing the suit and the same is admitted by
PW1, this court observes that as the documents issued by the Registrar of the
Trademarks show plaintiff as the owner of the trademark, I hold that the suit as filed
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by the plaintiff herself referring also as proprietor of Vijaya Enterprises is maintainable.
26.Coming to the arguments and counter arguments on the suit claim in respect of the registered Trademark of the plaintiff GANGA with its pictorial depiction and the trademark of the defendants Akash GANGA with its pictorial depiction and allegation of passing off by the defendants, both side counsel relied upon the authorities of Apex
Court and High Courts in support of their arguments and they are discussed below:
27.Authorities relied upon by the learned counsel for Plaintiffs:
28.1 Cadila Healthcare Ltd. vs Cadila Pharmaceuticals Ltd. (2001) 5 SCC 73:
28.2In this case, the Larger Bench of the Apex Court discussed the case law in S.M.
Dyechem Ltd. Vs. Cadbury (India) Ltd. (2000) 5 SCC 573 where in a passing off action, the plaintiff, which was carrying on the business under the mark of Piknik, filed a suit for injunction against the defendant which was using the mark of Picnic for some other chocolates sold by it, the trial court, on the allegation that the defendants mark was deceptively similar, issued an injunction which was reversed by the High
Court. On appeal, the decision of the High Court was affirmed. Hon’ble Apex Court while overruling the observations in Dyechem’s case observed as follows:
“18. We are unable to agree with the aforesaid observations in Dyechems case (supra). As far as this Court is concerned, the decisions in the last four decades have clearly laid down that what has to be seen in the case of a passing off action is the similarity between the competing marks and to determine whether there is likelihood of deception or causing confusion. This is evident from the decisions of this Court in the cases of National Sewing Thread Co. Ltd.s case (supra), Corn Products Refining Companys case (supra), Amritdhara Pharmacys case (supra), Durga Dutt Sharmas case (supra), Hoffmann-La Roche & Co. Ltd.s case
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(supra). Having come to the conclusion, in our opinion incorrectly, that the difference in essential features is relevant, this Court in Dyechems case (supra) sought to examine the difference in the two marks Piknic and Picnic. It applied three tests, they being 1) is there any special aspect of the common feature which has been copied ? 2) mode in which the parts are put together differently i.e. whether dissimilarity of the part or parts is enough to make the whole thing dissimilar and 3) whether when there are common elements, should one not pay more regard to the parts which are not common, while at the same time not disregarding the common parts ?. In examining the marks, keeping the aforesaid three tests in mind, it came to the conclusion, seeing the manner in which the two words were written and the peculiarity of the script and concluded that the above three dissimilarities have to be given more importance than the phonetic similarity or the similarity in the use of the word PICNIC for PIKNIK.
19. With respect, we are unable to agree that the principle of phonetic similarity has to be jettisoned when the manner in which the competing words are written is different and the conclusion so arrived at is clearly contrary to the binding precedent of this Court in Amritdharas case (supra) where the phonetic similarity was applied by judging the two competing marks. Similarly, in Durga Dutt Sharmas case (supra), it was observed that in an action for infringement, the plaintiff must, no doubt, make out that the use of the defendants mark is likely to deceive, but where the similarity between the plaintiffs and the defendants mark is so close either visually, phonetically or otherwise and the court reaches the conclusion that there is an imitation, no further evidence is required to establish that the plaintiffs rights are violated.” 28.3This case is also a landmark larger Bench Judgment of the Apex Court on what constitutes Passing Off.
28.4This case is relied upon by the learned counsel for plaintiff in support of her argument that in case of passing off, the factors relevant for determination of action of passing off are reiterated by the Hon’ble Supreme Court in this case. In this case, the subject trademark was in respect of a medicinal drug. Both the appellant and respondent before the Hon’ble Supreme Court were pharmaceutical companies. Both
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parties took over the associated business of Cadila group after its restructuring under
Sections 391 and 394 of Companies Act. Under the restructuring scheme, both the appellant and respondent got right to use name Cadila as Corporate name. The appellant manufactured a drug “Falcigo” containing “Artesunate” for the treatment of cerebral malaria commonly known as Falcipharum. Drugs Controller General (India) granted permission to the appellant to market said drug under the trademark “Falcigo”.
28.5On 10-04-1997, respondent got permission from Drugs Controller General (India) to manufacture a drug containing “Mefloquine Hydrochloride” which is also used in the treatment of Falcipharum Malaria, under the trademark “Falcitab”.
Appellant filed suit for injunction against respondent from using trademark “Falcitab” on the ground that the same would be passed off as appellant drug “Falcigo”.
Respondent contended that both the products were Schedule L drugs which can be sold only to the hospitals and clinics and that the chance of being confused is remote.
28.6The trial Court refused to grant interim injunction. Hon’ble High Court upheld that order. Hon’ble Supreme Court confirmed the orders of the Courts below and directed for expeditious disposal of the suit. While disposing the appeal, Hon’ble
Supreme Court set out the principles to be kept in mind while dealing with the action of infringement or passing off, specially in cases relating to medicinal products.
28.7Firstly, Hon’ble Supreme Court discussed Section 28 of Trade and Merchandise
Marks Act on registration of trademarks. Nextly, as to what constitutes passing off has been stated by the Apex Court, by extracting English case of Erwen Warnink BV Vs.
J Townend & Sons, 1979(2) AER 927 where it was held that the modern tort of passing off has five elements i.e. (1) a misrepresentation (2) made by a trader in the course of trade, (3) to prospective customers of his or ultimate consumers of goods or services supplied by him, (4) which is calculated to injure the business or goodwill of
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another trader (in the sense that this is a reasonably foreseeable consequence) and (5) which causes actual damage to a business or goodwill of the trader by whom the action is brought or (in a quia timet action) will probably do so.
28.8After thoroughly discussing several authorities of its own and the English case law, Hon’ble Supreme Court in para 35 of the Judgment broadly stated the factors to be considered in an action for passing off. The Supreme Court held as follows:
35. Broadly stated in an action for passing off on the basis of unregistered trade mark generally for deciding the question of deceptive similarity, the following factors are to be considered:
a) The nature of the marks i.e. whether the marks are word marks or label marks or composite marks, i.e. both words and label works.
b) The degree of resembleness (resemblance) between the marks, phonetically similar and hence similar in idea.
c) The nature of the goods in respect of which they are used as trade marks.
d) The similarity in the nature, character and performance of the goods of the rival traders.
e) The Class of purchasers who are likely to buy the goods bearing the marks they require, on their education and intelligence and a degree of care they are likely to exercise in purchasing and/or using the goods.
f) The mode of purchasing the goods or placing orders for the goods and
g) Any other surrounding circumstances which may be relevant in the extent of dissimilarity between the competing marks.
28.9This Court shall consider the above factors while deciding if there was any attempt by the defendants to pass off the goods of plaintiff as that of their goods.
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30.1 Parle Products (P) Ltd Vs. J.P. and Co., Mysore 1972(1) SCC 618:
30.2In this case, the Apex Court referring to the passage in Karly's Law of Trade
Marks and Trade (9th edition paragraph 838) on the similarity and dissimilarity of the marks in a case of passing off held as follows:
“9.It is therefore clear that in order to come to the conclusion whether one mark is deceptively similar to another, the broad and essential features of the two are to be considered. They should not be placed side by side to find out if there are any differences in the design and if so, whether they are of such character as to prevent one design from being mistaken for the other. It would be enough if the impugned mark bears such an overall similarity to the registered mark as would be likely to mislead a person usually dealing with one to accept the other if offered to him.”
31.1 Bihar Tubes Limited vs Garg Ispat Limited 2009 (41) PTC 741:
31.2Plaintiff relied upon this case in support of his authority that delay if any in bringing an action of passing off per se does not defeat grant of injunction in case of prior user. Hon’ble Apex Court in this case held as follows:
11. It is settled that a Court will not, in general, deny protection to a plaintiff only on account of the reason of, mere delay and laches. The rationale for this is that if Courts were to deny relief for this reason, then in a sense, they would have put their seal of approval on the conduct adopted by the plaintiff and the defendant in allowing the public to believe that the goods manufactured by one are those of another. The public have a right not to be deceived. See Syncom Formulations vs SAS Pharmaceuticals 2004 (28) PTC 632 (Del.), paragraph 12 at page 636. Also see observations of the Supreme Court on effect of delay in the case of Midas Hygiene Industries (P) Ltd. and Anr vs Sudhir Bhatia & Ors (2004) 3 SCC 90, as encapsulated in the following words:- "5. The law on the subject is well settled. In cases of infringement either of trade mark or of copyright, normally an injunction must follow. Mere delay in bringing action is not
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sufficient to defeat grant of injunction in such cases. The grant of injunction also becomes necessary if it prima facie appears that the adoption of the mark was itself dishonest."
12. In any event, as submitted by the learned counsel for the plaintiff, it is demonstrable from invoices filed by the defendant pertaining to November, 2008 that the defendant had stopped the use of infringing trade mark "APOLLO", and that it was only on a survey being carried out on 09.01.2008, and a subsequent discovery of an infringing invoice of 12.05.2009, that a cause arose which impelled the plaintiff to file the present action. There is no reason to disbelieve these averments at this stage. Therefore, even otherwise, I am of the view that there is no delay in approaching the court.
32.1 T. V. Venugopal vs Ushodaya Enterprises Ltd. & Anr (2011) 4 SCC 85:
32.2This case is relied upon by the plaintiff in support of their argument that the law is consistent and no one can be permitted to encroach upon the goodwill and reputation of other parties. In this case, the Appellant who was the respondent/defendant in the trial court proceedings was injuncted from using the mark “Eenadu” for their agarbathis holding that “Eenadu” has acquired extra-ordinary reputation and goodwill in the State of Andhra Pradesh. The trial court disposed the suit but granted injunction restraining the use of the mark in the state of Andhra Pradesh aggrieved by which the proceedings went to the Higher courts. The High Court of Andhra Pradesh allowed the
Letters Patents Appeals filed by the plaintiff company. The defendant approached the
Apex Court and the Apex Court observed as follows:
“100. The respondent company's mark `Eenadu' has acquired extra- ordinary reputation and goodwill in the State of Andhra Pradesh. `Eenadu' newspaper and TV are extremely well known and almost household words in the State of Andhra Pradesh. The word `Eenadu' may be a descriptive word but has acquired a secondary or subsidiary
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meaning and is fully identified with the products and services provided by the respondent company.” …..” 32.3The Apex Court had drawn several conclusions and observations and among them held that the law is consistent that no one can be permitted to encroach upon the reputation and goodwill of other parties.
33.1 Shambhu Nath and Brothers vs Imran Khan 2018 (76) PTC 365:
33.2This case is relied upon by the learned counsel for the plaintiff in support of her argument that if a word forming part of a mark has come in trade to use to identify the goods of the owner of the mark, it is an infringement of the mark itself to use that word as the mark or part of the mark of another trader, for confusion is likely to result. Hon’ble Calcutta High Court observed as above relying upon the observations of Upton J at Para 351 of Cluett Peabody & Co.
Inc. Vs. McIntyre Hogg Marsh & Co. Ld. 1958 RPC.
34.1 N.R. Dongre vs Whirlpool Corporation and Another (1996) 5 SCC
714)=AIR SC 3304:
34.2This case is relied upon by the learned counsel for the plaintiff in support of her argument that a suit for passing off is maintainable in law even against the registered owner of a trade mark. This suit is a passing off action brought by the plaintiff/respondents in the case before the Apex Court to restrain the defendant/appellants from manufacturing, selling, advertising or in any way using the trade mark 'WHIRLPOOL' in any other trade mark deceptively or confusingly similar to the trade mark of 'WHIRLPOOL1 in respect of their goods.
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34.3The claim of the plaintiff- respondents was based on prior user of the mark 'WHIRLPOOL' and a trans-border reputation indicating that any goods marketed with the use of the mark 'WHIRLPOOL' gives the impression of it being a goods marketed by the plaintiffs and that the washing machines manufactured, sold and advertised by the defendants give that impression resulting in confusing the intending buyers with the impression. In the Original suit, plaintiffs sought temporary injunction which was granted by the Hon’ble
Single Judge and affirmed by the Division Bench of Delhi High Court. This order of the Division Bench was challenged before the Apex Court. Thus, the case before the Apex Court arose out of a interlocutory order.
34.4The Apex Court while confirming the order of the Division Bench of the
High Court discussed the law under section section 27(2) of Trademarks Act of the right available to the prior user of the mark against the registered owner. The
Apex Court held as follows:
43………..Even though the appellants have no connection with the respondents, they are using the mark 'WHIRLPOOL' for their products. Prima facie it appears to us that buyers are likely to be deceived or confused as to the origin and source of the goods. They will believe that the product is manufactured by the respondents, an impression not founded in truth. The limitation will pass of as genuine. No one can be permitted to trade by deceiving or misleading the purchasers or to unauthorizedly divert to if self the reputation and goodwill of others. Under section 27(2) an action for passing off against registered user of trade mark is maintainable at the instance of a prior user of the same, similar or identical mark. Since such a remedy is available against the registered user of a trade mark, an interim injunction restraining him to use the mark can also be granted to make the remedy effective.
35.1 The Andhra Perfumery Works Joint Family Concerns vs Karupakula Suryanarayaniah AIR 1969 Mad 126:
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35.2This authority is relied upon by the learned counsel for the plaintiff in support of thier argument that the mark of the plaintiff with the word GANGA is distinctive and it is not publici juris. In this case, the Madras High Court held that the defence that the mark has become publici juris is not available in an action of passing off when the action for passing off is based on deception. Hon’ble Madras High Court extracted the paragraph of the earlier British law precedent at page 628 in Ford v. Foster, (1872) 7
Ch A 611 which reads as under:
Then the question is, has it become publici juris? And there is no doubt, I think, that a word which was originally a trade mark, to the exclusive use of which a particular trader, or his successors in trade, may have been entitled, may subsequently become publici juris, as in the case which has been cited of Harvey's Sauce. It was admitted that, although that originally had been the name of a sauce made by a particular individual, it had become publici juris, and that all the world were entitled to call the sauce they made Harvey's sauce if they pleased. Then what is the test by which a decision is to be arrived at whether a word which was originally a trade mark has become publici juris? I think the test must be, whether the use of it by other persons is still calculated to deceive the public, whether it may still have the effect of inducing the public to buy goods not made by the original owner of the trade mark as if they were his goods.
35.3Hon’ble Madras High Court after discussing the British law and the precedents of British law and Indian law posed the following questions at para 20 of the
Judgment.
20. Hence, there are only two issues of fact in these related proceedings. The first, whether the respondent firm has established distinctiveness in respect of this mark prior to 1960, and during the period 1953 to 1960? In other words, was distinctiveness first achieved, and did Infringements or piracies follow in its wake, or do we commence with a situation in. which the Mark has become, or is becoming, publici juris, and one manufacturer is heading the race to obtain registration? To be very clear about this the
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decision as between the alternative possibilities is essential, for, otherwise, the argument becomes circular. If the distinctiveness is held as first established, what is the adequacy of the evidence which has been adduced by the opponents (here the appellant firm), to show that distinctiveness was destroyed, and that the Mark has become publici juris?
35.4Hon’ble Madras High Court on the above two questions held as follows:
“26.………………..The respondent firm was then aware of several piratical attempts, which might have been on quite a small scale. They were putting some of them down by actions in Court, and they were accepting undertakings from others, on threatened action, to desist from further use of the Mark. We are quite unable to infer from this knowledge, assuming that it existed, any acquiescence or abandonment; nor does it amount to knowledge of facts, which would render the mark publici juris.” 35.5Hon’ble Madras High Court at the end critically observed on the names of deities being used for products and held as follows:
28.. Before leaving these appeals, we may refer to one argument, that the word 'GANESH' applies to the Lord Ganesa who is the deity of auspicious commencement of all undertakings in Hinduism, and hence that it would be wrong to create a monopoly in respect of such a term, for one particular proprietor. But it was never pretended that the word 'GANESH' cannot become distinctive for respondent firm's Agarbathis, or that it is not registrable, We need only observe, without proceeding further into this aspect, and leaving the issue quite open, that there are several other names of the deity (Vigneswara, Vinayaka etc.) which could be appropriately used by persons, desiring to associate their goods with the favour of the deity, if the Mark and device, which are thus invented, do not otherwise infringe any Prior registered device under the Trade Mark Law.
35.6Thus, in the present case applying the above principles of the Madras High
Court if its to be seen if the Word GANGA used by the plaintiff for its products lost its
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distinctiveness and if it had become publici Juris as argued by the learned counsel for the defendants.
36. Authorities relied upon by the learned counsel for the defendants:
37.1 National Bell Co. Vs Metal Goods Mft. Pvt. Ltd. AIR 1971 SC898:
37.2This case law is relied upon by the defendants in support of their argument that when the expression i.e. the word mark GANGA is being used by many persons in the trade as a trademark, it loses its distinctiveness and becomes publici juris. In this case, the Apex Court held as follows:
16………... The principle underlying cl. (c) of s. 32 is that the property in a trade mark exists so long as it continues to be distinctive of the goods of the registered proprietor in the eyes of the public or a section of the public. If the proprietor is not in a position to use the mark to distinguish his goods from those of others or has abandoned it or the mark has become so common in the market that it has ceased to connect him with his goods, there would hardly be any justification in retaining it on the register.
38.1 Skyline Education Institute Pvt. Ltd. S S L Vaswani AIR 2010 SC
3221:
38.2In Skyline Education case, the Apex Court basing on the evidence, held that 117 companies were suing the mark SKYLINE, that said word has become generic.
38.3Learned counsel for the defendants relied upon this authority in support of his argument that since 100s of traders have been using the mark GANGA, it has become generic. Learned counsel referred to the search reports got marked them as Ex.B23 to B26 and submitted that these search reports contain more than 100
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marks, that the defendant himself had filed more than 25 oppositions against the registrations of the mark GANGA and thus, the mark containing the word
GANGA is not only common in trade, but it is generic. In reply, learned counsel for plaintiff submitted that these reports are subject of rectification proceedings pending before the Trademarks registry and not relevant here.
39.1 Lal Babu Priyadarshi vs Amritpal Singh (2015) 16 SCC 795:
39.2In this case, the question before the Apex Court was if an user can claim name of holy or religious book as trade mark for his goods or services. The word in question was ‘RAMAYAN’. The Apex Court answered in the negative and held that one cannot monopolize the name of a holy or religious book. The observation is as follows:
18) There are many holy and religious books like Quran, Bible, Guru Granth Sahib, Ramayan etc., to name a few. The answer to the question as to whether any person can claim the name of a holy or religious book as a trade mark for his goods or services marketed by him is clearly ‘NO’.
19) Moreover, the appellant has not been able to establish that the word “RAMAYAN” for which he has applied the trade mark had acquired a reputation of user in the market inasmuch as, we find that there are more than 20 traders in the city using the word “RAMAYAN” as a mark for the similar products and also in different parts of the country”.
40.1 London Rubber Co. Ltd. VS. Durex Products Inc. & Anr AIR 1963
SC1882:
40.2Learned counsel for the defendants submitted that the defendants are honest concurrent user of the mark and such user cannot be deprived from using the mark.
Learned counsel further submitted that even otherwise, the mark of the plaintiff
GANGA is a single word used by scores of people and it has become publici juris and
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generic. In this case of the year 1963, the Apex Court referred to Halsbury's Laws of
England, Vol. 38, and extracted the legal position stated thus at p. 543 which reads as - "The foregoing provision (s. 11) does not override the statutory effect of
honest concurrent use and an objection under the foregoing provision
may be disposed of if there is evidence that the mark has been honestly used without confusion resulting." 40.2Nextly, the Apex Court discussed if the High Court and the Deputy Registrar were right in coming to the conclusion that there was honest concurrent use of the mark by the respondent. Hon'ble Apex Court held that one of the tests is the volume of use which absolutely depends on the facts and circumstances of each case. At the same time, the Apex Court also held that if there is honest concurrent use, it should think the small trader is entitled to protection of his trade mark; Trade mark is a kind of property and is entitled to protection under the law, irrespective of its value in money so long as it has some business or commercial value, that Not merely the interest of the public but also the interest of the owner are the subject and concern of trade mark legislation. Learned counsel for the defendants next submitted that there is absolutely no evidence to show that the plaintiff had been using the mark for products other than water filter candles prior to 2001 and mere showing as user of the trademark in the applications submitted before the registry of trademarks is not proof of long use of the trademark, much less for all the products.
41.Before discussing the oral evidence on record, the documents exhibited by both sides have to be appreciated. Ex.A1 is certificate of registration of Trademark issued by Trademarks Registry, Government of India under Section 23 (2) of Rule 62(1) vide trademark No.934652 dated 03-10-2008, as of the date 26-06-2000, in favour of B.
Satyavathi, trading as Vijaya Enterprises described as manufacturer and merchant in
Class-7. Ex.A2 is filed as certificate of registration of trademark issued by Trademarks
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Registry, Government of India under Section 23(2) of Rule 62(1) vide trademark
No.934653 dated 03-10-2008, as of the date 26-06-2000, in favour of B. Satyavathi, trading as Vijaya Enterprises described as manufacturer and merchant in Class-9.
Ex.A1 and A2 are for the word mark ‘GANGA’.
42.Ex.A3 is filed as certificate of registration of Trademark issued by Trademarks
Registry, Government of India under Section 23 (2) of Rule 62(1) vide trademark
No.1754333 as of the date 17-11-2008, in favour of B. Satyavathi, trading as Vijaya
Enterprises described as manufacturer and merchant in Class-11 for the artistic depiction “GANGA Mata spouting water” and “GANGA”. Ex.A4 is filed as another registration certificate of Trademark issued by Trademarks Registry, Government of
India under Section 23 (2) of Rule 62(1) vide trademark No.1754334 as of the date 17-11-2008, in favour of B. Satyavathi, trading as Vijaya Enterprises described as manufacturer and merchant in Class-21 for the artistic depiction “GANGA Mata spouting water” and “GANGA”.
43.Ex.A5 is filed as certificate of registration of trademark issued by Trademarks
Registry, Government of India under Section 23 (2) of Rule 62(1) vide trademark
No.934655 as of the date 26-06-2000, in favour of B. Satyavathi, trading as Vijaya
Enterprises described as manufacturer and merchant in Class-21 for the word mark ‘GANGA’. Ex.A6 is filed as certificate of registration of trademark issued by
Trademarks Registry, Government of India under Section 23 (2) of Rule 62(1) vide trademark No.934654 as of the date 26-06-2000, in favour of B. Satyavathi, trading as
Vijaya Enterprises described as manufacturer and merchant in Class-11 for the work mark ‘GANGA’ and date of issue is 03-10-2008.
44.Ex.A7 is Valued Added Tax registration certificate issued by Commercial Tax
Department dated 29-03-2005 in favor of M/s Vijaya Enterprises at Vijayawada.
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Ex.A8 is also Valued Added Tax registration certificate issued by Commercial Tax
Department dated 02-04-2007 in favour of M/s Vijaya Enterprises at Vijayawada.
Ex.A9 is warranty record of pressure pan with lid of product of defendant Pavan
Industries showing the artistic depiction of the registered trademark ‘Akash GANGA’ with tag-line ‘Safe for Life’. Ex.A10 is also warrant card and instructions manual.
Ex.A11 is instructions manual and warranty card of ‘GANGA’ Mixer Grinder, product of the plaintiff. Ex.A12 is also instructions manual and warranty card for ‘GANGA’
Mixer Grinder.
45.Ex.A13 is filed by the plaintiff as newspaper report about arrest of persons selling duplicate products of domestic appliances passing them as ‘GANGA’ products.
Ex.A14 is newspaper report. Ex.A15 is also newspaper report as per which in a press meet held by Pavan Industries i.e. defendant, they proclaimed that ‘GANGA’ and ‘Akash GANGA’ are different. Ex.A42 is filed as certificate issued under Section 45(1) of the Copyright Act, 1957. This certificate was issued by Trademarks Registry in the matter of copyright registration in respect of the label ‘GANGA’ in favour of
Vijaya Enterprises. The certificate reads as follows. “It is hereby certified that a search has been made among the collections of pending marks as well as in the Register of
Trademarks for the artistic work as a whole and that no trademark identical with or deceptively similar to the said artistic work (a copy of which is annexed hereto) has been registered under the Trade and Merchandise Marks Act, 1958 or that no application has been made under the said Act for registration by any person other than the application who has applied for registration of a deceptively similar artistic work under No.934654 in Class-11”. The certificate issued by Senior Examiner of
Trademarks is addressed to Registrar of Copyrights appended with artistic depiction of the mark. Ex.A43 is another certificate issued under Section 45(1) of the Copyright
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Act, 1957 in the matter of copyright registration in respect of word mark ‘GANGA’ under No.934654 in Class-11, dated 14-05-2002.
46.Ex.A44 is the particulars entered in the register of Copyrights in respect of registration No.64302/2003 dated 18-03-2003. The name of applicant is given as M/s
Vijaya Enterprises. Applicant’s interest in the copyright is shown as owner. The title of the label is ‘GANGA Label’. The language is English. The year and counter of the first publication and the name and address is given as 1989 India and the address is given as that of plaintiff at Vijayawada. Ex.A45 is another set of particulars entered in the register of Copyrights. Ex.A46, A48 are same as Ex.A44.
47.Ex.A47 is filed as letter addressed in respect of copyright searching of the label ‘GANGA’ in the name of Harsha Appliance. Ex.A49 is filed as application for registration of changes in the particulars of copyrights entered in the register of
Copyrights. The change sought is to change the existing entry from the name of M/s
Vijaya Enterprises Private Limited, Vijayawada in respect of Class Nos.9, 11, 12 and 13 of Register of Copyrights of registration No.64302/2003 to the name of
B.Muralikrishna trading as M/s Vijaya Enterprises sole proprietary concern at
Vijayawada. Ex.A50 is the changes made in the Register of Copyrights.
48.Ex.A51 is certificate issued in the matter of registration No.593203 in Class-7.
This was originally in the name of Swathantra Kumar, Proprietor trading as Harsha
Appliances and the certificate reads that B. Satyavathi trading as Vijaya Enterprises is registered as subsequent proprietor of the marks ‘GANGA’ by virtue of Deed of
Assignment dated 07-11-2007. Word mark ‘GANGA’ is totally different from the word mark ‘GANGA’ as seen in the other certificates of the plaintiff. Ex.A52 is filed as certificate issued in the matter of registration No.1754331 in Class-7, in the name of B.
Satyavathi trading as Vijaya Enterprises. The trademark type is mentioned as ‘Device’
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for the artistic depiction of ‘GANGA Mata spouting water’ and it is valid upto 17-11- 2018.
49.Ex.A53 is filed as certificate issued in the matter of registration No.934652 in
Class-7, in the name of B. Satyavathi trading as Vijaya Enterprises. The trademark type is mentioned as ‘Device’ for the word mark ‘GANGA’ and it is valid upto 26-06- 2020. Ex.A54 is filed as certificate issued in the matter of registration No.1754332 in
Class-9, in the name of B. Satyavathi trading as Vijaya Enterprises. The trademark type is mentioned as ‘Device’ for the artistic depiction ‘GANGA Mata spouting water’ and it is valid upto 17-11-2018. Ex.A55 is filed as certificate issued in the matter of registration No.934653 in Class-9, in the name of B. Satyavathi trading as Vijaya
Enterprises. The trademark type is mentioned as ‘Device’ for the word mark ‘GANGA’ and it is valid upto 26-06-2020.
50. Ex.A56 is also a certificate issued in the matter of registration No.1754333 in
Class-1, in the name of B. Satyavathi trading as Vijaya Enterprises. The trademark type is mentioned as ‘Device’ for the artistic depiction ‘GANGA Mata spouting water’ and it is valid upto 17-11-2018. Ex.A57 is filed as certificate issued in the matter of registration No.934654 in Class-11, in the name of B. Satyavathi trading as Vijaya
Enterprises. The trademark type is mentioned as ‘Device’ for the word mark ‘GANGA’ and it is valid upto 26-06-2020. Ex.A58 is filed as certificate issued in the matter of registration No.1754334 in Class-21, in the name of B. Satyavathi trading as Vijaya
Enterprises. The trademark type is mentioned as ‘Device’ for the artistic depiction ‘GANGA Mata spouting water’ and it is valid upto 17-11-2018. Ex.A59 is filed as certificate issued in the matter of registration No.934655 in Class-21, in the name of B.
Satyavathi trading as Vijaya Enterprises. The trademark type is mentioned as ‘Device’ for the word mark ‘GANGA’ and it is valid upto 26-06-2020.
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51.Coming to the documents filed by the defendants, Ex.B1 is filed as copy of application in Form TM-28 said to have been submitted by the plaintiff for registration of registered used of the trademark. This document was marked through confrontation to PW1 and it is already discussed above.
52.Ex.B2 is filed as original tax invoice of defendant issued by Micro Hi-Tech
Industries in favour of Pavan Industries for purchase of equipment. Ex.B3 is trademark certificate issued by the Deputy Registrar of Trademarks, certifying that rectification application No. MAS-259563 was filed in respect of trademark No.1066181 in Class -11. The rectification is to change the name of subsequent proprietor as Pawan Kumar
Panwar trading as Pavan Industries in respect of work mark ‘Akash GANGA’ by virtue of Assignment Deed dated 31-08-2006. The earlier proprietor is shown as Goutam
Kumar Babulal trading as Micro Hi-Tech Industries. Ex.B4 is another rectification recorded in respect of trademark certificate No.1030890 in Class-31 registered on 26- 07-2001 for word mark ‘Akash GANGA’.
53.Ex.B5 are speaking orders passed by the Deputy Registrar of Trademarks allowing the rectification as under Ex.B3 and B4. Ex.B6 is registration certificate issued in the matter of registered trademark No.1258021 in Class-7, showing Suresh
Kumar trading as Promise Collections in respect of trademark devise and the registration is for trademark ‘Akash GANGA’ mixing machine for kitchen sale in southern states of India, issued on 24-08-2010. Ex.B7 is filed as application submitted by defendant No.1 along with Deed of Assignment dated 31-08-2010 to note the name of subsequent proprietor in trademark No.1258021 in Class-7. Ex.B8 is filed as rectification application No.1476657 in Class-11 in respect of trademark ‘Akash
GANGA’. Ex.B9 is filed as counter statements filed by the registered properties in the matter of rectification No.259562 in Class-11 in the name of Pavan Kumar Panwar.
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The counter statement was by Pavan Kumar Panwar to the Registrar of Trademarks to dismiss the rectification proceedings initiated by plaintiff B. Satyavathi in respect of trademark No.1476657 in Class-11 of defendant No.1 Pavan Industries.
54.Coming to the oral evidence on record, the Chief affidavit of PW1 is reiteration of the facts pleaded in the plaint. PW1 also affirmed that immediately after coming to know that some of the manufacturers were using ‘GANGA’ for their goods, they lodged police complaint and action was initiated against two dealers for selling the products under the name ‘GANGA’, that the defendants have been manufacturing and marketing their goods from only recently only with an intention to deceive the public as if the products of the defendant are that of the products of the plaintiff. PW1 was thoroughly cross examined by the learned counsel for defendants.
55.Evidently, PW1 is said to be the Chief Executive Officer of the plaintiff company. He stated that PW1 is proprietary concern, he is not the person who signed the plaint, but he filed the chief affidavit. He deposed that from 1987 to 1997 they have conducted survey in AP (Andhra Pradesh then combined State) Market, by that time no person was using trademark ‘GANGA’, that they obtained certificate of efficacy of the dealers, that they are selling the goods in the name of ‘GANGA’ from 1984, that they acquired ‘GANGA’ from Swatantra Kumar in the year 1993 and are also using the trademark in water filters from 1984. He affirmed that trademark shown in Ex.A53 in Class-7, A55 in Class -9, A57 in Class-11 an A59 in Class-21 are being used since 1984, that they are using the trademark together along with registered copyright label in respect of ‘GANGA Mata’
56.PW1 further affirmed that in Ex.A44 to A46 they claimed that GANGA Mata originated in 1989 and they started using the same since 2001. PW1 further stated that one Muralikrishna who is the husband of Satyavathi was the proprietor, that he died on
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06-03-2007, that the family Court issued certificate that plaintiff concern shall vest with wife and two children of Murali Krishna. Evidently, no such certificate is filed into this Court. PW1 further deposed that he joined in the plaintiff company in the year 1996, that Ex.B1 was obtained by him, that Form TM-28 application is filed for registration of registered user, that agreement under Ex.B1 is with effect from 07-12- 2012 and it is valid for a period of 5 years, that in the year 2009, plaintiff proprietary concern was converted as Vijaya Agencies Private Limited.
57.It is seen from Ex.A44 to A46 that the name of B. Murali Krishna is noted as the owner of the artistic work and the name of Vijaya Enterprises Private Limited was transferred to Murali Krishna. PW1 further deposed that Vijaya Enterprises Private
Limited was incorporated in the year 2001, that B.Murali Krishna was the Managing
Director of both Vijaya Agencies Private Limited and Vijaya Enterprises Private
Limited, he does not know if there are other distributors of ‘GANGA’ products. He denied that they are not using GANGA trademark for mixers and grinders.
58.It is evident from Ex.A11 and A12 instructions manual and warranty card of ‘GANGA’ Mixer Grinder which is depicting the product, that the product is mixer and grinder and it is filed as that of the product of the plaintiff. It was not specifically denied by the defendants that this product does not belong to the plaintiff. When suggested to PW1 that others were also using the trademark ‘GANGA’, PW1 answered in the positive and stated that they filed oppositions, that he can file copies of orders obtained by them. Evidently, these orders are not filed by the plaintiff.
59.PW1 further stated that some other oppositions filed are pending, that the trademark ‘GANGA’ is being used for cookers since 2000, that trademark ‘GANGA’ is being used for water filters from 1984. He denied that they are only distributors of ‘GANGA’ water filters, pressure cookers under the name of GANGA. He added that
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they are the manufactures and distributors of water filters with name ‘GANGA’. He affirmed that they have been conducting raids and initiating proceedings against rival manufactures, that two cases were registered in Hyderabad, that as the defendant is the only rival manufacturer in AP, they initiated proceedings against him in the year 2010, that in the press statement defendant No.1 stated that ‘GANGA’ and ‘Akash GANGA’ are different.
60.Coming to the oral evidence of defendants, defendant No.2 is examined as
DW1. Chief affidavit of DW1 is reiteration of the facts pleaded in the written statement. In his cross examination, DW1 stated that they do trading and manufacturing, they manufacture pressure cookers, non stick pans, etc., and they are manufacturing since 2006 and are trading from 2000, that they are trading in the name of ‘Akash GANGA’ and also marketing it upto 2006 and doing trading alone from 2006, that he joined defendant No.1 Pavan Kumar Panwar, he was also looking after the marketing of defendant No.1, that Pavan Kumar Panwar purchased ‘Akash
GANGA’ from Gautham Kumar Babdulal, that the Trademark was registered in Class- 11 and Class-12 purchased by defendant No.1 from defendant No.2., that trademark registered in Class-7 was purchased by D1 from him.
61.DW1 further stated that in Ex.B22, the user date is shown as 01-01-2001, that plaintiff used to market under the trade name ‘GANGA’ for water filter candles, but he do not know whether they are doing since 1984. He denied that trademark ‘GANGA’ is being used for cookers, LPG stoves, etc., for a long time. He admitted that four or five years ago there was a raid in their factory by the police, they also seized their material on the ground that the trademark was identical to the plaintiff and the case is pending.
He denied that they played fraud to deceive the general public and to take advantage of
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the similarity of the trademark, they started using ‘Akash GANGA’ which is identical to the plaintiff’s mark.
62.DW1 stated that they established their brand with their own efforts. He denied that they have no registration under the copyrights Act. He admitted that prior to 2000, they were not using the trademark ‘Akash GANGA’. He denied that copyright registration was obtained by them subsequent to the copyright of the plaintiff. He added that prior to 2006, they were only outsourcing under the name ‘Akash GANGA’ and subsequently they started manufacturing. He denied that plaintiff has exclusive right to use the trademark ‘GANGA’ and that both the marks of plaintiff and defendant are similar. He denied that due to deceptive use of the trademark ‘GANGA’, plaintiff suffered huge loss and that they are liable to compensate.
63.In a suit for passing off, burden is on the plaintiff to establish certain events.
The first and foremost duty of the Court is to see the trademark used and the goods for which the mark has been used. The mark of the plaintiff is word label as well as having artistic depiction. The word label contains the word ‘GANGA’ in capital letters in a bold font and style, where the work is narrow at the center and gradually grows wide towards left and right and it is in red colour on white back ground. Above these words, a female spouting water, which the plaintiff described as GANGA Mata (Mother Ganga) in a small size is placed.
64.Coming to the trademark of the defendant, it is only a word label. The word ‘GANGA’ is exactly the same i.e. the font, size of the font, style of the font, the artistic work of the font are the same. It is in white colour in red background and where
GANGA Mata is there in the plaintiff’s mark the word ‘Akash’ is mentioned on the top and on the bottom on yellow background in small letter ‘Safe for Life’ is mentioned.
At the first instance, only the words ‘GANGA’ on both the marks of the plaintiff and
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defendant will catch the eye of public. The font, size and the font size, font style and the manner in which the letters are narrow and wide is exactly same as of the plaintiff’s word label ‘GANGA’. The colour used are also same red and white.
65.In the plaintiff’s label the background is white and in the defendant’s label the letters are in white and background is red. The pressure cooker which is the product of defendant contains the same sticker depicting ‘GANGA’ with the words ‘Akash’ in small letters on top of it. The product of plaintiff also has a sticker with same style and size of word ‘GANGA’ in red colour with the words GANGA Mata in small size on the top.
66.It is also important to note that the colour of the words on the sticker of the product is red and the colour of the words on the sticker of the product of the plaintiff is also red. Thus, at the first look both the labels appear to be the same and from the point of view of purchasing public both the labels appear similar. Thus, it cannot be found fault if the purchasing public or the customers purchasing them find both the labels one and the same.
67.It is an undisputed fact that the defendant had been marketing its goods like pressure cooker, LPG stoves, etc., in Class-7 and Class-11 under his registered trademark. It should be noted that this is not a case of trademark infringement as defendant is also a proprietor of registered trademark and this is a case where the plaintiff claimed action of passing off. It is also the argument of learned counsel for defendants that the documents of the plaintiff show that they are the sole distributor or dealer in AP of the products and they did not show that plaintiff is the registered proprietor of the trademark. This Court observes that the invoices indeed contain as to who is the proprietor of the trademark and even the invoices of the defendants also do
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not contain the information that it is the registered trademark of the trademark for which certificate was given to defendant.
68.The following conclusions are drawn from the above discussion:
•Plaintiff is the prior user of the trademark GANGA with pictorial depiction of GANGA Mata from the year 1984. The mark was registered for the products in Class 7, 9 , 11 & 21 in the year 2000 whereas copyright was given in the year 2003.
•The mark of the defendants with word AKASH GANGA is visibly similar to the word mark of the plaintiff in its font and style and size of the mark.
•That the defendants have knowledge of the goods of the plaintiff in the market with the trademark GANGA.
•That the defendants have got their mark registered which is similar to the mark of the plaintiff and started using their mark for their products using the goodwill and reputation of the plaintiff in the field. When viewed from the point of the ordinary person, the product of the defendant can be easily passed off as the product of the plaintiff.
69.Hence, in view of the conclusions drawn above, I hold that the plaintiff is entitled for the relief of perpetual injunction against the defendants. So far as the relief sought for a direction to the defendants to surrender the property, the same is declined.
These issues are decided accordingly.
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Issue No.4:
70.A specific plea is taken by the defendants that the trademark of the defendants is a registered and published trademark being in use from the year 2000, that the suit of the plaintiff filed in the year 2010 claiming passing off and trademark infringement is hopelessly barred by limitation. Plaintiff claimed that it succeeded to to all the rights in the artistic work having trade mark GANGA as one of its features which is registered with the Registrar of Copyrights under Registration No.A-64302/2003 and A- 64304/2003 that Mr. Muralikrishna acquired rights from M/s. Vijaya Enterprises
Private Limited by virtue of deed of assignment dt.21-08-2006, the request made for carrying out the same in the the Register of Copyrights is pending with the Registrar of
Copyrights, Delhi.
71. Plaintiff further claimed that they have issued a caution notice dt.17-11-2008 in two daily newspapers “Eenadu” and Deccan Chronicle” English daily, that they came to notice that rival manufacturers were using the emblem as they are trade mark
GANGA similar to the plaintiff’s goods, that one of the distributors of plaintiff sent the copy of the registration certificate of defendant Registered Trade Mark, then plaintiff inquired into the matter and came to know that the trade mark was registered and published in Trade Marks Journal No. MEGA 2, Dt.25-09-2003, that application was made by defendant on 26-7-2001 and 2nd defendant claimed the use of trade mark since 04-01-2001 and registration certificate has been issued in November, 2004 in favour of 2nd defendant, but 2nd defendant never used the trade mark though it was registered and assigned to 1st defendant with registration No.1066181 for Class 11 and
Trade Mark No.1030890 for Class 21, that both the defendants have no registration under Class 7 and 9.
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72.Plaintiff also claimed that they filed an application for rectification of the
Register before the Registrar of Trade Mark and it is pending for enquiry and recently plaintiff came to know that 2nd defendant assigned the trade mark to 1st defendant, that defendants obtained the registration of the impugned trade mark by playing fraud, concealing material from the Registrar of Trade Marks.
73.Defendants denied any fraud or concealment of any material from the Registrar of Trade Marks. Defendants claimed that plaintiff cannot plead ignorance to the fact that each of the marks of the defendant are published in the Trademarks Journal before they are registered, that plaintiff waited till registration certificates in respect of applications were issued and then only contemplated action against the defendant, that assignment of mark ‘Akash GANGA’ to defendant by his predecessor in title in respect of registered mark Nos.1066181 and 1030890 took place in the year 2007 itself and it can be accessed from the public domain and sought to dismiss the suit.
74. It is seen from the documents exhibited by the defendants that they have also sought for registration of trademark GANGA. Ex.B5 are speaking orders passed by the Deputy Registrar of Trademarks allowing the rectification as under Ex.B3 and B4 bringing the name of the defendant No.1, for Trade Mark Nos.1066181 and 1030890 dt.05-07-2007. Ex.B6 is registration certificate issued in the matter of registered trademark No.1258021 in Class-7, showing Suresh Kumar trading as Promise
Collections in respect of trademark devise and the registration is for trademark ‘Akash
GANGA’ mixing machine for kitchen sale in southern states of India, issued on 24-08- 2010. it is the case of the defendants that the plaintiff waited till the registration certificate was issued in favor of the defendant No.2 and then filed the suit, having all these years kept quiet.
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75.It is seen that the plaintiff had filed opposition to the application of the defendants and only in the year 2010, certificate was issued in the name of D2 in respect of trademark ‘Akash GANGA’. It is not as if plaintiff has not been aggrieved by the use of the trademark by the defendant. It is a fact that opposing the claim of trademark by the defendants, plaintiff had been agitating its case before the Trade
Marks Registry and on issuance of Ex.B6 certificate issued in favor of D2, plaintiff filed the suit alleging passing off.
76.It is also the argument of the learned counsel for the defendant that there are latches on part of the plaintiff, that the plaintiff had acquiesced to the use of the trademark ‘Akash GANGA’ by the defendant from they year 2000 and in such case, plaintiff cannot allege passing off by the defendant.
77.This court observes that the very objection/opposition filed by the plaintiff to the registration of trademark by the defendants shows action on part of the plaintiff and the argument of the learned counsel for the defendant that there were latches on part of the plaintiff cannot be accepted. Regarding the plaintiff aquiescing the use of the trademark by the defendant, on this aspect also the continuous opposition of the plaintiff against third parties and also against the defendant from using the trademark cannot be act of acquiescence. I hold that the suit of the plaintiff is within limitation.
Issue No.4:
78.In view of the above discussion on issues No.1 to 3, the suit of the plaintiff has to be decreed with costs.
79.IN THE RESULT, the suit is decreed with costs. Defendants are hereby restrained by way of perpetual injunction from using the Trademark ‘AKASH
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GANGA’ as depicted in Ex.A9 and A10 on their goods which are phonetically and visually similar to that of the plaintiff’s mark ‘GANGA’ either in their business or during the course of their business transactions or on the products manufactured, traded and marketed by the defendants in Class 7, 9, 11 and 21.
Dictated to the Stenographer, transcribed and typed by her, corrected and pronounced
by me in the open Court on this the 29 th day of April, 2022.
Sd/-
XXV Additional Chief Judge, City Civil Court, Hyderabad.
APPENDIX OF EVIDENCE:
WITNESSES EXAMINED
FOR PLAINTIFF: FOR DEFENDANTS: PW1: S.G.K.L.N. Sarma DW1: Suresh Kumar Lalwani Jain
DOCUMENTS MARKED FOR PLAINTIFF:
Ex.A1: Certificate of registration for Class 7 of the plaintiff dt.03-10-2008.
Ex.A2: Certificate of registration for Class 9 of the plaintiff dt.03-10-2008.
Ex.A3: Certificate of registration for Class 11 of the plaintiff dt.17-10-2008.
Ex.A4: Certificate of registration for Class 21 of the plaintiff dt.17-11-2008.
Ex.A5: Certificate of registration for Class 21 of the plaintiff dt.03-10-2008.
Ex.A6: Certificate of registration for Class 11 of the plaintiff dt.03-10-2008.
Ex.A7: Xerox copy of trade mark certificate of plaintiff Class 11 from Website dt.28- 10-10.
Ex.A8: Copy of value added tax registration certificate dt.02-04-2007.
Ex.A9: Warranty card of defendant No.1 with logo Akash GANGA.
Ex.A10: Warranty card of defendant No.1 with loga Akash GANGA.
Ex.A11: Instructions Manual and warranty card of GANGA.
Ex.A12: Instructions manual and warranty card of GANGA.
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Ex.A13: News item published in Sakshi daily.
Ex.A14: News item published in Eenadu daily.
Ex.A15: Press statement given by defendant No.1 in Andhra Jyothi daily dt. 24-10- 2010.
Ex.A16: Invoice of M/s Bhairav Home Needs dt. 29-10-2010.
Ex.A17: Invoice of Jain Steel House dt.29-10-2010.
Ex.A18: Invoice of Shanti Steel Palace dt.29-10-2010.
Ex.A19: Invoice of White house dt.29-10-2010.
Ex.A20: Bunch of invoices for the period from 2001 of Vijaya Enterprises (10 Nos.)
Ex.A21: Bunch of invoices for the period from 2002 of Vijaya Enterprises (2 Nos.).
Ex.A22: Bunch of invoices for the period from 2003 of Vijaya Enterprises (11 Nos.)
Ex.A23: Bunch of invoices for the period from 2004 of Vijaya Enterprises (12 Nos.) .
Ex.A24: Bunch of invoices for the period from 2005 of Vijaya Enterprises (12 Nos.)
Ex.A25: Bunch of invoices for the period from 2006 of Vijaya Enterprises (12Nos.).
Ex.A26: Bunch of invoices for the period from 2007 of Vijaya Enterprises (12 Nos.).
Ex.A27: Bunch of invoices for the period from 2008 of Vijaya Enterprises (12 Nos.) .
Ex.A28: Bunch of invoices for the period from 2009 of Vijaya Enterprises (12 Nos.) .
Ex.A29: Bunch of invoices for the period from 2010 of Vijaya Enterprises (7 Nos.).
Ex.A30: Bunch of invoices for the period from 2001 of Vijaya Enterprises (9 Nos.).
Ex.A31: Bunch of invoices for the period from 2002 of Vijaya Enterprises (9 Nos.)
Ex.A32: Bunch of invoices for the period from 2003 of Vijaya Enterprises (11 Nos.)
Ex.A33: Bunch of invoices for the period from 2004 of Vijaya Enterprises (14 Nos.).
Ex.A34: Bunch of invoices for the period from 2005 of Vijaya Enterprises (2 Nos.).
Ex.A35: Bunch of invoices for the period from 2006 of Vijaya Enterprises (3 Nos.).
Ex.A36: Bunch of invoices for the period from 2007 of Vijaya Enterprises (1 Nos.)
Ex.A37: Bunch of invoices for the period from 2006 of Vijaya Enterprises (14 Nos.).
Ex.A38: Bunch of invoices for the period from 2007 of Vijaya Enterprises (10 Nos.).
Ex.A39: Bunch of invoices for the period from 2008 of Vijaya Enterprises (11 Nos.).
Ex.A40: Bunch of invoices for the period from 2009 of Vijaya Enterprises (11 Nos.) .
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Ex.A41: Bunch of invoices for the period from 2010 of Vijaya Enterprises (7 Nos.)
Ex.A42: Certified copy of certificate issued to the Registrar, New Delhi in respect of label GANGA of M/s Vijaya Enterprises Private Limited under No.934654 in Class 11 dt.14-05-2002.
Ex.A43: Certified copy of certificate issued to the Registrar, New Delhi in respect of label GANGA of M/s Vijaya Enterprises Private Limited under No.934654 in Class-11 dt.14-05-2002.
Ex.A44: Certified copy of certificate of Regn. No.A-64302/2003 dt.18-03-2003.
Ex.A45: Certified copy of certificate of Regn. No.A-64303/2003 dt.18-03-2003.
Ex.A46: Certified copy of certificate of Regn. No.A-64304/2003 dt.18-03-2003.
Ex.A47: Certified copy of search certificate issued to Sharp Trade Mark Co., New Delhi in respect of GANGA in the name of Harsha Applicance, Delhi, dt.03-07-2003.
Ex.A48: Certified copy of certificate of Regn. No.A-66730/2004 dt.12-03-2004.
Ex.A49: Certified copy of Form V by the plaintiff along with statement of particulars, dt.23-08-2006.
Ex.A50: Certified copy of certificate issued by Dy. Registrar of Copyrights in respect of changes made in Register of Copyrights, dt.27-04-2007.
Ex.A51: Certificate issued to M/s. United Legal Services in respect of Trade Mark No.593203 in Class -7 along with true of the entry dt.03-01-2017.
Ex.A52: True copy of Trade Mark No.1754331 in Class 7 issued to United Legal Services, Mumbai, dt.19-01-2017.
Ex.A53: True copy of Trade Mark No.934652 in Class 7 issued to United Legal Services, Mumbai, dt.19-01-2017.
Ex.A54: True copy of Trade Mark No.1754332 in Class 9 issued to United Legal Services, Mumbai, dt.19-01-2017.
Ex.A55: True copy of Trade Mark No.934653 in Class 9 issued to United Legal Services, Mumbai, dt.19-01-2017.
Ex.A56: True copy of Trade Mark No.1754333 in Class 11 issued to United Legal Services, Mumbai, dt.19-01-2017.
Ex.A57: True copy of Trade Mark No.934654 in Class 11 issued to United Legal Services, Mumbai, dt.19-01-2017.
Ex.A58: True copy of Trade Mark No.1754334 in Class 21 issued to United Legal Services, Mumbai, dt.19-01-2017.
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Ex.A59: True copy of Trade Mark No.934655 in Class 21 issued to United Legal Services, Mumbai, dt.19-01-2017.
DOCUMENTS MARKED FOR DEFENDANT:
Ex.B1: Copy of application form TM-28.
Ex.B2: Invoice of Micro Hi-Tech Industries dt.07-07-2006.
Ex.B3: Certified copy of entries made in the register in respect of trade Mark No.1066181in Class 11 dt. 22-11-2010.
Ex.B4: Certified copy of entries made in the register in respect of Trade Mark No.1030890 in Class 21 dt.22-11-2010.
Ex.B5: Order passed by the Trade Marks Registry bringing the name of the defendant No.1, Trade Mark Nos.1066181 and 1030890 dt.05-07-2007.
Ex.B6: Certified copy of entries made in the register in respect of Trade Mark No.1258021in Class 7 dt. 12-12-2010.
Ex.B7: Office copy of the application on Form 7 and 24, Trade Mark No.1258021 in Class-7 dt.13-12-2010.
Ex.B8: Certified copy of entries made in the register in respect of Trade Mark No.1476657 in Class 11 dt.22-11-2010.
Ex.B9: Letter of the Trade Mark registry communication the service of counter statement on form TM-6 to plaintiff in Rectification bearing No.259562 dt.31- 08-2009.
Ex.B10: Copy of letter of the plaintiff’s counsel together with the application on form Trade Made 56, dt.03-06-2010.
Ex.B11: Copyright certificate bearing No.A-83913/2008 dt.16-10-2008.
Ex.B12: Examiner’s report issued in respect of Trade Mark No.1812165 in Class 21, dt.29-06-210.
Ex.B13: Examiner’s report issued in respect of Trade Mark No.1812165 in Class 9, dt.29-06-2010.
Ex.B14: Caution notice issued in Swathantra Vaartha (Hindi) on behalf of the defendant No.1, dt.23-01-2008. Ex.B15: Caution notice issued in Hindi , Milap on behalf of the defendant No.1,
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dt.23-01-2008.
Ex.B16: Copies of invoices issued by Micro Hitech Industries, Bangalore from the year 2003 to 2005 (17 Nos.) .
Ex.B17: Invoices issued by the defendant No.1 from the year 2006 to 2010.
Ex.B18: Copies of credit memos issued by M/s Promise Collections, Hyderabad.
Ex.B19: Bills Books (6 Nos).
Ex.B20: VAT Returns.
Ex.B21: Deed of Assignment executed by the 1st defendant Akash GANGA 1066181, dt.01-07-2017.
Ex.B22: Status report of Trade Mark No.1258021 dt.07-03-2018.
Ex.B23: Computer Generated TM-Search report dt.07-02-2011.
Ex.B24: Computer Generated TM-Search report dt.18-11-2011.
Ex.B25: Computer Generated TM-Search report dt.18-11-2011.
Ex.B26: Computer Generated TM-Search report dt.18-11-2011.
Ex.B27: Certified copy of examiner’s report of Trade Mark No.934652.
Ex.B28: Certified copy of examiner’s report of Trade Mark No.934654.
Ex.B29: Certified copy of examiner’s report of Trade Mark No.934655.
Sd/-
XXV Additional Chief Judge, City Civil Court, Hyderabad.
IN THE COURT OF THE XXV ADDITIONAL CHIEF JUDGE, CITY CIVIL
COURT AT HYDERABAD
Present: SMT. B. PRATHIMA
XXV Additional Chief Judge
WEDNESDAY, THIS THE 27TH DAY OF APRIL, 2022
APPEAL SUIT NO.210 OF 2015
Between:
Shaik Mohd.Omer S/o Mohd.Sultan, rep. by his GPA holder Mohd.Sultan S/o Late Shaik Dawood, aged 76 years, Occ: Pensioner, R/o 23-1-327, Harijan Galli, Bibi Bazar Cross Road, Hyderabad.
....Appellant/Plaintiff
AND
1. Mohd.Basith S/o Late Mohd. Ghouse, aged about 52 years, Occ: Driver, R/o 23-1- 328, Harijan Galli, Bibi Bazar, Hyderabad.
2. Shaik Muzaffar S/o Shaik Chand, aged 39 years, Occ: Business, R/o 23-1-326, Harijan Galli, Bibi Bazar, Hyderabad. ….Respondents/Defendants
Appeal against the Judgment and Decree dt.01-06-2015 in OS No.1472/2012
passed by the VIII Junior Civil Judge, City Civil Court, Hyderabad.
OS No.1472 of 2012
Between:
Shaik Mohd.Omer S/o Mohd.Sultan, rep. by his GPA holder Mohd.Sultan S/o Late Shaik Dawood, aged 74 years, Occ: Pensioner, R/o 23-1-327, Harijan Galli, Bibi Bazar Cross Road, Hyderabad, AP.
....Plaintiff
AND
1. Mohd.Basith S/o Late Mohd. Ghouse, aged about 48 years, Occ: Driver, R/o 23-1- 328, Harijan Galli, Bibi Bazar, Hyderabad.
2. Shaik Muzaffar S/o Shaik Chand, aged 35 years, Occ: Business, R/o 23-1-326, Harijan Galli, Bibi Bazar, Hyderabad.
….Defendants
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This Appeal suit came before me for final hearing and disposal in the presence of Sri Mohd.Saleem Pasha, Advocate for the Appellant/Plaintiff and of Sri Mir Wajid Ali Khan, Advocate for Respondent No.2/Defendant No.2, Respondent No.1 remained absent and was set ex parte, upon hearing both sides and on perusing the material available on record and the matter having stood over for consideration till this day, the Court delivered the following:-
:: J U D G M E N T ::
1.The unsuccessful plaintiff in OS No.1472/2012 filed this First Appeal seeking to set aside the Judgment and Decree dt.01-06-2015 passed in said suit by the VIII
Junior Civil Judge, City Civil Court, Hyderabad.
2.For the sake of convenience, the parties hereinafter are referred to as they were arrayed before the Lower Court.
3.OS No.1472/2012 was filed by sole plaintiff against two defendants seeking to declare that the western and eastern walls of the suit schedule property bearing No.23- 1-327, situated at Bibi Bazar Cross Road, Harijan Galli, Hyderabad, belongs to the plaintiff and to grant perpetual injunction restraining the defendants from interfering in the construction work of repairing of the damaged walls of the suit schedule property.
The suit of the plaintiff was dismissed.
4.Brief pleadings of both sides before the Trial court are as follows:
Plaint averments:
5.1Plaintiff is the absolute owner and possessor of house bearing municipal No.23- 1-327 admeasuring 76 Sq Yd situated at Bibi Bazar Cross Road, Harijan Galli,
Hyderabad, having purchased the same under a registered sale deed document
No.800/2005 dated 13-06-2005 from P.Krishna Rao, who acquired the same under registered sale deed document No.956/1978 dated 20-04-1978. As per the registered sale deed of plaintiff, the suit schedule property with all the walls except northern wall
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totally belongs to plaintiff. Defendants are neighbours of west and eastern side of the plaintiff. Defendant No.1 is illegally claiming western wall of the plaintiff and on 15- 05-2012, he also dug pits near the plaintiff’s wall. Due to digging, the western wall was totally damaged and cracks and holes occurred in the wall. Plaintiff objected for the same and defendant gave deaf ear, that when plaintiff intended to repair the wall, defendants 1 and 2 are obstructing.
5.2Defendant No.2 is immediate neighbour of the plaintiff on east side and both the defendants are claiming the eastern and western side walls of the plaintiff and they made illegal construction by using the wall of the plaintiff. Plaintiff issued legal notice dated 19-05-2012 to stop their illegal attempts of damaging plaintiff’s wall.
Notice was served on the defendants and they did not chose to reply. Hence, the suit.
Written Statement averments of Defendant No.1:
6.1Plaintiff is not at all the owner and possessor of the suit schedule property and the walls. Plaintiff cannot seek relief of injunction against defendant No.1 who is the real owner. It is false to state that plaintiff is the absolute owner of 23-1-327. Plaintiff is put to strict proof of his purchase. Defendant No.1 is owner of property bearing
No.23-1-327 and the wall situated in the western side of the suit schedule property i.e.
the eastern side of defendant No.1’s property which exclusively belongs to defendant
No.1. It is denied that defendant No.1 is illegally claiming western side wall of the suit schedule property. It is false that on 15-05-2012, defendant No.1 was digging pits nearby the wall of the plaintiff and that there occurred damage in the western wall of the plaintiff, that plaintiff objected for which defendant No.1 gave deaf ear. It is denied that when plaintiff intended to repair his wall, defendant No.1 obstructed. It is denied that defendant No.1 made illegal construction by using wall of the plaintiff.
6.2Mother of defendant No.1 purchased property bearing No.23-1-328 admeasuring 61 Sq Yd from Hafeezsunnisa Begum and another under a registered sale
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deed document No.3184/1970 dated 19-12-1970. As per the registered sale deed the wall of the property of defendant No.1 exclusively belongs to him which is shown in red colour in the sale deed plan. Mother of defendant No.1 gifted said property bearing
No.23-1-328 admeasuring 61 Sq Yd to defendant No.1 under a registered gift settlement deed document No.136/2003 dated 05-02-2003. The plan annexed to the gift deed shows that wall exclusively belongs to defendant No.1. Taking advantage that defendant No.1 was out of station, and nobody was residing in defendant No.1’s house, plaintiff removed his wall on eastern and western side and put front side elevation so that nobody can see the illegal act of the plaintiff from inside his house.
6.3Apart from that, plaintiff encroached 2 feet 5 inches on southern side land. The wall of defendant No.1 is as it is right from the date of purchase by the mother of defendant No.1 which was construction with mud walls. Roof of defendant No.1 is covered with asbestos sheets and iron sheets which is laid on exclusive wall of defendant No.1, which is more than 60 years old and the construction is more than 60 years. Defendant No.1 is exercising all ownership rights in respect of the property bearing No.23-1-327 including the wall, that the GPA holder of plaintiff having evil eye over the walls of defendant No.1, though in the absence of defendant No.1 removed his walls by chopping from inside and now he is trying to falsely claim exclusive wall of defendant No.1 on western side of the suit schedule property. Said illegal act of GPA holder of plaintiff came to knowledge of defendant No.1 when he along with his labour suddenly on 19-03-2012, came to defendant No.1 property and tried to demolish wall situated on eastern side of defendant No.1 property which is to the west of the suit schedule property. Defendant No.1 gave police complaint against plaintiff. Police Moghalpura, Hyderabad registered a case against GPA holder of plaintiff on 20-03-2012 in crime No.62/202 and case is pending. Plaintiff suppressed said fact. Defendant No.1 is exclusive owner of the eastern side wall of his property which is to the west of the suit schedule property. Hence, suit may be dismissed.
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Written Statement averments of Defendant No.2:
7.1The sale deeds do not mention that the eastern and western walls are included in the suit schedule property. It is true that plaintiff is the owner and possessor of
H.No.23-1-327 admeasuring 76 Sq Yd. It is false that said house with walls on eastern, western and southern side except northern side wall, belong to plaintiff. Defendant
No.2’s mother is the owner and possessor of H.No.23-1-326 including walls on eastern side neighbour i.e. plaintiff. It is denied that defendant No.2 is obstructing in repairing work of the plaintiff. The eastern wall of the suit schedule property belongs to mother of defendant No.2 who is lawful owner of H.No.23-1-326 for the past 30 years.
Eastern wall is constructed with mud. Hence, the suit may be dismissed.
8.Basing on the above pleadings, the trial court framed the following issues for trial:
1. Whether the plaintiff is entitled to the relief of declaration as sought for?
2. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for?
3. To what relief?
9.Before the trial Court, on behalf of plaintiff, PW1 is examined and Ex.A1 to
A12 were marked. On behalf of defendants, DW1 and DW2 were examined and
Ex.B1 to B5 were marked. One R.Mani Prasad, appointed as Advocate Commissioner is examined as CW1 and Ex.C1 to C6 are marked through him.
10.Learned trial Judge, after appreciating the oral and documentary evidence on record and the report of Advocate Commissioner came to a conclusion that as per the case of the plaintiff, his property is H.No.23-1-327 including eastern, western and northern side boundaries in 76 Sq Yd, but as per the report of the Advocate
Commissioner, the extent of the house is 89.80 Sq Yd and the extent of H.No.23-1-328 is found to be 57.10 Sq Yd, that there is no mention in any document that the 76 Sq Yd
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is inclusive of the area of the walls. With such observations, learned trial Judge held that the suit for declaration filed by the plaintiff to declare that western and eastern walls of the suit schedule property of H.No.23-1-327 belong to the plaintiff, cannot be granted.Regarding the relief of injunction, learned trial Judge observed that plaintiff failed to prove that he is owner of an extent of 89.90 Sq Yd including the wall area and as such plaintiff cannot be granted any injunction. With such observations, learned trial Judge dismissed the suit of the plaintiff. Aggrieved by the Judgment and Decree of the trial court, the unsuccessful plaintiff preferred this Appeal with the following grounds:
Grounds of Appeal:
1. Lower court erred in dismissing the suit of the plaintiff without appreciating the facts and circumstances and material available on record.
2. Lower court failed to appreciate Ex.A4, A5 and A6 which clinchingly establishes the title of the appellant/plaintiff.
3. Lower court failed to note that as per the boundaries mentioned in the sale deed of plaintiffs eastern and western side of the suit property the properties of respondents are existing and defendant No.1 admitted that towards eastern and western side, the wall of plaintiff is existing and therefore, there is no justification in dismissing the suit of plaintiff on the ground that there exists excess land found by the Advocate Commissioner, but the fact remains that the disputed wall is existing within the boundaries of the appellant/plaintiff.
4. Plaintiff is in peaceful possession and enjoyment of the property right from the date of purchase and the structures are existing within the boundaries only.
5. Lower court relied upon report of Advocate Commissioner and came to wrong conclusion and dismissed the suit without ascertaining the fact as to whom the wall existing towards western and eastern side of the suit property belongs.
11. Heard both side counsel.
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12.Learned counsel for plaintiff submitted that learned trial Judge lost sight that declaration was sought in respect of eastern and western side wall of H.No.23-1-327, that photographs filed by the Advocate Commissioner, the sale deed filed by the plaintiff marked Ex.A2 and A6 more than sufficiently prove that there is eastern and western wall of the plaintiff which are included in the house of the plaintiff and with such evidence, plaintiff ought to have been declared that east and west side walls of
H.No.23-1-327 belong to him. Learned counsel further submitted that the photographs also show that there are cracks in the wall which necessitated repairs and it is the right of the plaintiff to carry out necessary repairs to his wall to safeguard his property and making of such repairs was thwarted by defendants No.1 and 2 without any reason and vehemently submitted that the trial Court ought to have granted liberty to the plaintiff to carryout repairs to the damaged wall on the east and west of the plaintiff’s property, by restraining the defendants from interfering in the said work of the plaintiff.
13.Learned counsel for defendant No.2 though filed vakalat and put up appearance in the case, did not advance any arguments and they are taken as heard.
14.The points that arise for determination in this Appeal are -
1. Whether the eastern and western walls of the suit schedule property i.e. H.No.23-1-327 belong to the plaintiff and if the trial Court erred
in holding on these eastern and western walls?
2. Whether the lower Court failed to appreciate the oral and
documentary evidence on record in the right perspective?
3. Whether impugned Judgment and Decree dt.01-06-2015 in OS No.1472 of 2012 passed by the Learned VIII Junior Civil Judge, City Civil Court is liable to be set aside and Whether plaintiff is entitled for grant of relief of declaration that the western and eastern walls of the suit property bearing No.23-1-327 belong to plaintiff and whether defendants can be restrained by way of perpetual injunction from interfering with the construction work of repairing of damaged walls of the plaintiff, as prayed for in the suit?
4. To what relief?
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15.Both sides did not adduce any additional evidence in this appeal.
Points No.1 to 3:
16.As seen from the pleadings narrated above, the crux of the matter is about the eastern and western side walls of H.No.23-1-327. It is seen that the house bearing
No.23-1-326 of defendant No.2 is on the east of the suit schedule property i.e.
H.No.23-1-327, whereas house of defendant No.1 bearing No.23-1-328 is on the west of the H.No.23-1-327. It is borne by record that though defendant No.1 strongly opposed the claim of plaintiff initially, later there appears to be a compromise between plaintiff and defendant No.1. However, said compromise is not recorded before the
Court and it remains that defendant No.1 remained absent in the later proceedings in the suit and as well in this Appeal and was set ex parte in this appeal. Defendant No.2 alone is contesting the appeal. However, no arguments are advanced even learned counsel for defendant No.2.
17.In the written statement of defendant No.1, he averred that the wall to the west of the plaintiff’s house which is to the east of his house, is his exclusive wall as the wall hitherto existing as wall of the plaintiff was chipped off by the plaintiff from the inside of the house. He further claim that the remaining wall is his wall and it is constructed with mud and that the asbestos sheets and iron sheet roof of defendant
No.1 is resting on said wall. Thus, this is the plea of defendant No.1 regarding the western side wall of property of plaintiff which is claimed as his wall by the plaintiff.
18.Coming to the eastern side wall of the plaintiff, defendant No.2 claims that said wall is his exclusive wall and that it is a mud wall. Not much is clarified by defendant
No.2 whether it is a common wall of the plaintiff and defendant No.2, but it appears that defendant No.2 is claiming exclusive right to this wall. As seen from the documents of the plaintiff i.e. Ex.A7 photographs, there is no gap or open area between the house of the plaintiff and defendant No.1 on the west of the plaintiff’s
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house and similarly there is no gap between the house of plaintiff and defendant No.2 on the east of the plaintiff’s house.
19.As seen from the plans appended to the sale deeds filed by both sides, the plans show that the house wall is the wall separating the house of plaintiff and defendant
No.1 and the house of plaintiff and the house of defendant No.2. In case of such nature, burden is on both the plaintiff and defendants to show that said wall shown in the documents of both sides was either a common wall in which both the house owners got equal right or that there are two walls abutting each other and that house roof of the plaintiff is resting on his wall and the house roof of the neighbouring owner is resting on their wall. Such evidence cannot be gathered from the sale deeds.
20.I have thoroughly gone through the sale deeds of the plaintiff, defendant No.1 and 2, which are marked as Ex.A1, A6 and Ex.B2, B4. It is a fact that an Advocate
Commissioner was also appointed in this case and he filed his report. The report of the
Advocate Commissioner marked as Ex.C4 assumes much importance. It is seen from
Ex.C4 report of Advocate Commissioner that prior to his visit, work memo was submitted only by counsel for defendant No.1 and no work memo was submitted by the learned counsel for defendant No.2. The scope of the warrant was as follows.
To note down the physical features of the suit schedule property bearing H.No.23-1-237 including its walls and to take measurements of the property.
To note the physical features of H.No.23-1-327 including its walls and to measure said property.
21.Advocate Commissioner inspected the property, measured the property with help, took photographs which are marked as Ex.C5 (total 22 photographs). The crucial aspects of the Advocate Commissioner’s report are as follows:
The west to east measurements of H.No.23-1-327 is 30 feet 6 inches from out side and from inside measurement is 30 feet 11 inches (on the south
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side). From West top east side the measurement is 37 feet 5 inches (north side).
22.It is not clear if the above measurements are inside measurements or outside measurements. Similar measurements are given on north to south and west to east side.
The measurements of premises No.23-1-328 are also given. The Advocate
Commissioner observed that the west wall is freshly cement plastered and the east wall is also plastered and whitewashed. It is mentioned that the photographs of the rooms from all sides of H.No.23-1-327 are taken.
23.Coming to premises No.23-1-328, it is mentioned that the Advocate
Commissioner had taken photographs, that house is covered with partly demolished roof with asbestos sheets and partly with iron sheets, that the eastern side wall is old shelfed wall constructed with mud. This wall is the disputed western wall i.e. the wall to the west of the plaintiff’s house. There is no observation if it is a single common wall or two walls joined side by side and if the roof of either of the houses i.e. house of plaintiff or the house of defendant No.1 is taking support of this wall in its entire width or if both the houses are taking support of this wall. The report also mentions that it is a old dilapidated wall constructed with mud.
24.Coming to the evidence on record, first it is necessary to discuss the evidence of
CW1, Advocate Commissioner. He stated that the total extent of H.No.23-1-327 is 89.80 Sq Yd including east and west side walls. There is no clarity in this statement. It is observed above that only on one side the house of the plaintiff from east to west was measured from outside and on other sides, the outside measurements are not taken.
Both the outside measurements and inside measurements are to be taken to note if the walls are included in the measurements or not. CW1 further stated that the west side wall of H.No.23-1-327 from inside was newly constructed and whitewashed, whereas, the wall of H.No.23-1-328 appears to be old construction with mud walls. He also said that there are shelfs annexed to the wall of H.No.23-1-328 “and it completely fell to
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the property”. This statement is not understandable and no meaning can be given to this statement. CW1 further stated that he did not measure the wall, but he obtained measurements of the width of the wall by measuring the property from outside as well as from inside. However, it is seen from the Advocate Commissioner report that inside and outside measurements are taken only of H.No.23-1-327 and that too from west to east on the southern side i.e. road side and significantly the inside measurement is 5 feet more and it might be that the wall either on the east side or west side of H.No.23- 1-327 towards south was removed at some point of time and it might be prior to the purchase of the property by the plaintiff or later. He also admitted that there is crack in the west wall of the plaintiff. He was cross examined only by counsel for defendant
No.1 and there was no cross examination by learned counsel for defendant No.2.
25.In the light of this evidence, as the plaintiff claims that the eastern and western walls of his property are his exclusive walls, plaintiff has to show that his house wall to his east and west are his exclusive walls. Chief affidavit of PW1 is reiteration of the facts pleaded in the plaint. There was thorough cross examination by the learned counsel for defendant No.1 and 2. Evidently, PW1 is none other than the father and
GPA holder of the plaintiff and he is seen to be acquainted with the facts of the case and the disputed property. In his statement before the Court, during his cross examination by the learned counsel for defendant No.2, PW1 deposed that after purchase of the suit schedule property, there was no construction made in the suit schedule property. Thus, according to him nothing was constructed in the suit schedule property to change the physical features of the property or increase or decrease the suit schedule property. He further deposed that the suit schedule property is of asbestos sheets and the walls are made of mud and bricks, that when once he attempted to carry out repairs to the damaged wall which was damaged due to the defendants, defendants obstructed his repairing work and both the defendants are claiming the eastern and western side wall of the suit schedule property.
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26.Coming to the cross examination by the learned counsel for defendant No.1,
PW1 answered that he cannot give width of the wall to the west of the suit schedule property. This is the disputed wall between the house of defendant No.1 and house of plaintiff. When suggested that tin shed roof of defendant No.1’s house take support on this wall, PW1 denied the same. He stated that there are no shelfs in the western side wall of the suit schedule property i.e. inside the house of defendant No.1. He admitted that plaintiff purchased constructed property, but he did not say when the construction was made. He denied that they have coloured the boundaries in red colour in Ex.A5 plan. He denied that he demolished the eastern side wall of house of defendant No.1.
He denied that in the absence of defendant No.1, he chopped the west side wall and now he is claiming that wall of defendant No.1 as his west side wall. Thus, whatever stand defendant No.1 had taken in his written statement, it was put to PW1 in his cross examination and PW1 denied this claim of defendant No.1. A clear suggestion was given to PW1 that if the west side wall claimed by the plaintiff is removed, the house of defendant No.1 will collapse. This suggestion was categorically denied by PW1.
27.Coming to the evidence of DW1, DW1 is defendant No.1 and he got marked sale deed Ex.B2 and B4 gift deed. He stated that his property is to the east of the suit property, that his roof is covered by asbestos and tin sheets. He identified left side house in Ex.A7 photographs as his house and right side house as house of the plaintiff.
Evidently, in Ex.A7 photographs the plaintiff’s house is identified to the east and defendant No.1 has identified to the west and when these are compared with the photographs taken by the Advocate Commissioner, they tally with each other. When questioned if he had seen west side of the property from inside the house, DW1 answered that he did not see. It was suggested to DW1 that roof of the suit schedule property is resting on the west side wall. Thus, it is seen from the cross examination of
PW1 and DW1 that both are claiming that roofs of their houses are resting on this disputed wall between the house of plaintiff and defendant No.1. DW1 further deposed
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that plaintiff reconstructed his house on his old structures. This statement of DW1 was denied and it was suggested to DW1 that there was never any reconstruction or new construction in the suit schedule property from the date of purchase by the plaintiff.
DW1 denied said suggestion. He admitted that he is not owner of premises No.23-1-
327. He further stated that there is only one wall which wall belongs to himself and according to him, about three years back PW1 got removed his walls by chopping wall from inside.
28.DW1 next stated that by this act of PW1, the eves of plaintiff’s house are wested on his wall, that he talked with the plaintiff who assured him that by the time of their construction he will remove the eves by separating the wall from plaintiff’s house and on that assurance he kept quite. He denied that plaintiff never chopped the wall from inside and never made any such assurance to separate eves. It was next suggested to DW1 that Ex.A7 photographs clearly show two walls in existence and those two wall belong to plaintiff and defendant No.1 respectively. Thus, for the first time in the cross examination of DW1, it was put forth by plaintiff that there are two walls joining the house of plaintiff and defendant No.1 and that one wall belong to plaintiff and one wall belong to defendant No.1. There is no such record before this Court and the Advocate Commissioner report also do not clarify on this aspect.
29.On their part, defendant No.2 examined himself as DW2. Chief affidavit of
DW2 is reiteration of the facts pleaded in the written statement of defendant No.2. Not much was elicited in the cross examination of DW2. He denied that as per Ex.A2, the east, west and south side walls of the house of plaintiff belong to plaintiff. He denied that he colluded with defendant No.1. It is seen from the oral and documentary evidence on record and also the evidence of Advocate Commissioner and photographs filed by him that there is no clarity if the wall separating the wall of plaintiff and defendant No.1’s houses, is a single wall/common wall and if it is a single wall whether it is the wall used by both the plaintiff and defendant No.1 i.e. whether
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plaintiff’s roof is resting or defendant No.1’s roof is resting or if the roof of the plaintiff and defendant No.1 both are resting. Evidence on this aspect is necessary to come to a conclusion on the above questions. However, there is also no evidence to show if there are two walls between the houses of plaintiff and defendant No.1, if the roof of the plaintiff is resting on his wall and if the roof of defendant No.1 is resting on his wall. There is also no evidence to show if the wall is a single wall and the roof of the plaintiff and defendant No.1 are resting on this wall between the house of plaintiff and defendant No.1.
30.Without any such evidence on record, there cannot be a conclusion as to the right of either the plaintiff or defendant No.1 in this wall. Hence, I hold that this is a fit case to set aside the impugned judgment and decree of the trial Court and to remand the case to the trial Court for adducing evidence on the above questions and to decide the suit afresh. The trial Court shall appoint the same Advocate Commissioner or a new Advocate Commissioner who shall inspect the suit schedule property and the properties of defendant No.1 and 2 and answer the questions posed above. Fee of the
Advocate Commissioner shall be borne by the appellant/plaintiff. I hold that in view of the above observations, the Judgment and Decree of the trial court are to be set aside.
The appeal is accordingly allowed setting aside the judgment and decree of the trial
Court, however remanding the suit with a direction to the trial Court to record the evidence on above aspects and dispose the suit a fresh as indicated in the judgment.
Points are answered accordingly.
Point No.4:
31.In view of the findings given in points No.1 to 3, I hold that the appeal is to be allowed setting aside the impugned judgment and decree of the trial court, however remanding the matter to trial Court for disposal afresh as indicated in the Judgment.
32.IN THE RESULT, the Appeal is allowed setting aside the impugned Judgment
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and decree dated 01-06-2015 passed by the VIII Junior Civil Judge, City Civil Court,
Hyderabad in OS No.1472/2012, thereby remanding the suit to the trial Court for fresh disposal within two months from the date of receiving this Judgment, as indicated in the judgment.
Dictated to the Stenographer Grade-I, transcribed and typed by her, corrected and
pronounced by me in the open Court on this the 27th day of April, 2022.
Sd/-
XXV Additional Chief Judge, City Civil Court, Hyderabad.
APPENDIX OF ADDITIONAL EVIDENCE: -Nil-
Sd/-
XXV Additional Chief Judge, City Civil Court, Hyderabad.
IN THE COURT OF XXV ADDITIONAL CHIEF JUDGE, CITY CIVIL COURT
AT HYDERABAD
Thursday, this the 28th day of April, 2022
PRESENT: SMT. B. PRATHIMA XXV Additional Chief Judge
O.S.No. 693 of 2014
Between:
Babu Khan Mall Owners Welfare Society, rep. by its President Jatin Khanna S/o Virender Khanna, aged about 47 years, Occ: Business, R/o 6-3-1111, Somajiguda, Hyderabad. ….Plaintiff
AND
1. K.Srinivas Reddy S/o K.V.Narasimha Reddy, aged about 87 years, Occ: Business, R/o Flat No.105, Arien Apartments, Punjagutta, Hyderabad.
2. K.Jayaprada Devi W/o K.Srinivas Reddy, aged about 83 years, Occ: Business, R/o Flat No.105, Arien Apartments, Punjagutta, Hyderabad.
3. Umarani Kanmanth Reddy W/o Dr.Vijay Kanmanth Reddy, aged about 28 years, Occ: Business, R/o Flat No.105, Arien Apartments, Punjagutta, Hyderabad.
4. Siri Kanmanth Reddy D/o Dr.Vijay Kanmanth Reddy, aged about 28 years, Occ: Business, R/o Flat No.105, Arien Apartments, Punjagutta, Hyderabad.
5. Arjun Kanmanth Reddy S/o Dr.Vijay Kanmanth Reddy, aged about 26 years, Occ: Business, R/o Flat No.105, Arien Apartments, Punjagutta, Hyderabad.
6. M/s Amistad Holdings and Investments, a partnership firm rep. by its Managing Partner Aju Abdul Karim S/o Abdul Karim, aged about 36 years, situated at MCH No.6-3-111/B/501, 5th Floor, Babukhan Mall, Somajiguda, Hyderabad.
....Defendants
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This suit came before me for final hearing and disposal in the presence of Sri K.Prabhakar, Advocate for the Plaintiff and of Sri A.Venkatesh, Advocate for Defendants 1 to 5 who reported no instructions, Defendant No.6 having remained absent and was set ex parte, upon hearing the counsel for plaintiff and on perusing the material available on record and the matter having stood over for consideration till this day, the Court delivered the following:
:: J U D G M E N T ::
1.This suit is filed by sole plaintiff against six defendants, seeking to grant mandatory injunction by directing defendant No.6 to remove all modifications, kitchen, toilets, washing basins, terrace garden, etc., including iron pillars or rods and sheets erected on the open terrace admeasuring 4443 Sq Ft situated adjacent to Flat
No.501, on 4th floor of Babukhan Mall building, to grant perpetual injunction restraining the defendants and their men from interfering or occupying the open terrace or space, on the northern side and adjacent to flat No.501, situated on 4th floor of
Babukhan Mall building, to direct the defendants 1 to 5 to vacate and deliver actual vacant physical possession of the suit schedule property to the plaintiff society, directing them to pay Rs.41,66,924/- towards damages and to direct defendants 1 to 5 to pay mesne profits.
Brief averments of Plaint are as follows:
2.1Plaintiff is a Welfare Society registered in the Office of the Registrar of
Societies under AP Societies Registration Act 2001 vide Registration Certificate
No.611 off 2011 The object of plaintiff Society is to manage the Building and the civic amenities of shops and protect the Common areas including terrace situated in the building known as “BabuKhan Mall” besides providing feasible security and safety
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measures to the owners or occupants of said Babukhan mall. Plaintiff Society is not a profit oriented society. Defendant No.1 to 5 are the absolute owners and possessors of flat bearing number 501 with super plinth area of 4322 Sq Ft situated on 4th floor under the water tank together with specified Parking space No.69 in the upper basement notified as cellar No.2 with undivided share of land being 155 Sq Yd in said mall having purchased the same from the vendors under registered sale dated 14th
June 2006.
2.2Babu Khan Mall is a commercial complex and is a multi storied building consists of 38 shops including Flat No.501 with various plinth areas. Initially, there was no permission for construction of flat number 501. Permission was granted for construction of only a 4 storied building. However, vendors of defendants No.1 to 5 constructed flat 501 on the 4th floor without there being a sanctioned permission from the municipal authority. The same was constructed illegally in contravention of the
Municipal Laws. After purchase of said flat, defendants number 1 to 5 applied to
GHMC for regularization in the year 2008. GHMC regularized flat number 501 only for 4322 Sq Ft vide permission proceedings No.BPS/2642/C-10/CZ/GHMC/2008
dated 18-03-2013. Even before regularization, defendants No,1 to 5 let out said flat to
D6 under registered lease deed dated 8th February 2013. Defendants 1 to 5 are not entitled to let out the open terrace area admeasuring 4443 Sq Ft which is the suit property to D6. It is not covered under the registered sale deed through which they bought flat number 501.
2.3The scheduled property is open terrace and it is common area. All the flat owners in the mall are entitled to use and enjoy the common areas. Prior to regularization of flat number 501, defendants 1 to 5 are restricted to use only 4322 Sq
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Ft. D6 had been running Bar and Restaurant in the name and style of ‘Terrace Bay’. As per the lease deed, the monthly rent was 1,92,000/-. After making full decoration,₹
D6 has been running the bar and restaurant, he created garden over the terrace and fixed colorful lighting to attract customers, he is using heavy gas in the kitchen without proper Fire exit and built toilets, kitchen, wash basins etc., on the let out flat and the suit property. He is also playing loud music on the open terrace for the parties.
On account of the same, water started leaking from the terrace garden into 2nd, 3rd and 4th floors and into the electric panel room. Plaintiff society addressed a letter dated 20- 07-2013 to D1 to D6 raising concerns.
2.4Plaintiff Society also addressed letter to first defendant. Plaintiff society received several complaints of the given dates from the business establishments who are running businesses with heavy investments in the mall building. Defendants 1 to 5 got issued the legal notice dated 02/01/2014 to D6 calling upon D6 to vacate the building along with terrace area. D6 approached 24 Addl. Chief Judge court and filed
OP 569 of 2014 under Section 9 of Arbitration and Conciliation Act. An ex parte status
quo order was granted in that OP. Said OP is pending. Defendant No.6 refused to remove the illegal modifications that are erected on the terrace. Defendant No.6 was objected from erecting the iron pillars and rods in the open terrace. However, defendant No.6 came with anti social elements and threatened the manager and assistants of the plaintiff in case they interrupted the work. Plaintiff society was constrained to approach the SHO Panjagutta, but no action was taken.
2.5During the pendency of the suit, D6 vacated the premises on 31-01-2017 and handed over Flat No.501 and suit property to defendants No.1 to 5 who are in actual physical possession. Defendants 1 to 5 are liable to vacate the suit property and
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handover an area admeasuring 4443 Sq Yd immediately to the plaintiff society.
Plaintiff society requested them to hand over the same, but they refused to hand over the suit property to plaintiff society. Plaintiff society is also entitled for damages from defendants 1to 5, since they let out the Suit property to D6 against the bye laws of the
Society and gained huge money. Plaintiff is also entitled for damages and mesne profits as claimed in the plaint.
Written Statement Averments of Defendants No.1 to 5:
3.1The suit of the plaintiff is misconceived and is liable to be dismissed. These defendants already filed a suit vide OS 516 of 2014 before the 25th Additional Chief
Judge and it is pending. Plaintiffs deliberately suppressed about pendency of said suit.
Defendants are absolute owners and possessors of flat number 501 on 5th Floor of
Babu Khan Mall admeasuring 4322 Sq feet covered area and 4443 Sq Ft uncovered area having purchase the same under registered sale deed dated 14-06-2006.
Plaintiff of society is well aware that 5th floor was illegally constructed without permission from the GHMC for which plaintiff society is responsible. There was understanding between vendors of defendants that none other than members of plaintiff society and family member of Babu Khan that the purchasers who can bear all the costs for getting 5th floor regularized and can use the uncovered area of open terrace admeasuring 4443 Sq Ft forever without any hurdle in the future which was accepted by these defendants and they agreed to purchase the 5th floor. After purchasing defendants applied for regularization in the year 2008 by paying huge regularization charges and thus they became owners of 4322 Sq Ft covered area and 4443 Sq Ft uncovered area and they are enjoying the same. Only these defendants have right title and interest over that area of the suit property.
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3.2It is true that defendants 1 to 5 let out the property to defendant No.6 for running Bar and Restaurant under a lease agreement. Defendant No.6 approached in the month of December 2012 and stated that they have been associated with previous tenant in running Bar and Restaurant and said tenant is no longer interested in continuing the business and defendant No.6 is a partnership firm and it was interested in taking the premises on lease from 01-01-2013 and to start a Bar and Restaurant under the name and style of Terrace Bay. It is incorrect to say that because of modifications of defendant No.6 there was blocking of pathways and emergency fire exits. Defendants 1 to 5 gave reply to the notice of plaintiff. Defendants No.1 to 5 let out the portion which they purchased under sale deed and possession of which was handed over to them by their vendor and it is not in violation of bye laws of plaintiff society or provisions of A.P. Apartments Act. Defendants 1 to 5 did not let out any common area to defendant No.6. All other plaint averments are denied. It is false to say that defendants are liable to pay damages to the plaintiff society for leasing out the scheduled property illegally to D6. Hence, the suit may be dismissed.
4.Defendant No.6 remained absent and was set ex parte.
5.Basing on the above pleadings, the following issues were framed for trial on 04- 07-2017:
1) Whether the plaint schedule property is common property of the
members of the plaintiff society including defendant Nos.1 to 5?
2) Whether the plaintiff’s society is entitled for a mandatory injunction against 6 th defendant as prayed for?
3) Whether the plaintiff is entitled for a permanent injunction as prayed for?
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4) To what relief?
6.In view of consequent amendment to the plaint, the issues are recast as under:
1. Whether the plaintiff is entitled for eviction of the defendants 1 to 5 from
the suit schedule property and for vacant possession thereof?
2. Whether the plaintiff is entitled for a sum of Rs.41,66,924/- towards damages from defendants 1 to 5?
3. Whether the plaintiff is entitled for mesne profits from defendants 1 to 5, if yes, at what rate and for what period?
7.During course of trial, plaintiff Society examined their President as PW1 and got marked Exs.A1 to A9. No oral or documentary evidence was adduced on behalf of the defendants.
8.Heard arguments advanced by the leaned counsel for the plaintiff. No arguments are advanced on behalf of Defendants No1 to 5.
Issues No.1 and 2:
9.Admitted facts of the case are that plaintiff is a Society registered under the provisions of AP Societies Registration Act, 2001, that the object of plaintiff Society is to manage the Building and the civic amenities of shops and protect the Common areas including terrace situated in the building known as “BabuKhan Mall” besides providing feasible security and safety measures to the owners or occupants of said
Babukhan mall and it is not a profit oriented society. It is also an admitted fact that D1 to D5 are the owners of Flat bearing No.501 on the fourth Floor. Plaintiff specifically claimed that D1 to D5 are not the owners of the open area by the side of the terrace flat
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No.501, that this open area admeasuring 4433 Sq Ft is the common area of all the flat owners of the building, that D1 to D5 illegally let out flat No.5 and this open area to
D6 under registered lease deed dated 08-02-2013 on a rent of Rs.1,92,000/-.
10.Plaintiff further claimed that the tenant, in order establish his Bar and
Restaurant made modifications to the terrace without any right or title, that by modifications, defendant No.6 constructed kitchen, wash rooms, erected pipe lines and etc., due to which acts, water started leaking into the 2nd and 3rd and 4th floor business establishments who invested huge amounts and are running their businesses, that the plaintiff society received several complaints from the occupants of the building, that water also started leaking into the electric panel rooms, that plaintiff society got issued a legal notice dated to the defendants 1 to 5, but defendant No.6 did not vacate the premises.
11.Plaintiff further alleged that D6 vacated the premises during the pendency of the suit on 31-01-2017 and handed over the suit schedule property of 4333 Sq Ft of terrace area to defendants No.1 to 5, that D1 to D5 were demanded to handover the said area to the plaintiff Society as it is common area meant for use of all the owners in the building, that it is not the exclusive property of D1 to D5 and even the sale deed of D1 to D5 Ex.A1 does not reveal sale of said area to them. With such pleas, plaintiff society amended the suit for a direction against D1 to D5 to vacate and handover possession of suit area and for damages and mesne profits.
12.It is seen from record that D6 remained absent and was set ex parte. As per the amended plaint, D6 vacated and handed over the property including that of the suit area to D1 to D5. D1 to D5 on their part filed written statement and thereafter did not
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participate in the suit proceedings. In support of their case, plaintiff society examined their President as PW1. The chief affidavit of PW1 is reiteration of the facts pleaded in the plaint. To decide the reliefs sought in the suit and also in view of the written statement, the material questions that fall for consideration in this issue are -
1. Whether D1 to D5 are owners of the suit schedule area of 4443 Sq Ft?
2. Whether contrary to the recitals of the registered sale deed Ex.A1, the vendors of D1 to D5 who are the members of plaintiff Society agreed and conveyed the suit area for the exclusive use and title of D1 to D5?
13.Ex.A3 is certified copy of Registered Sale Deed Doct. No.1729/2006 dt.14-06- 2006 executed in favor of D1 to D5. As per this document, the property sold is only flat No.501 in an area of 4322 Sq Ft with undivided share of 155 Sq Yd. Burden is only the defendant No.1 to 5 to show that contrary to Ex.A1 recitals, they also purchased 4333 Sq Ft area on the terrace. D6 who is claimed as tenant of D1 to D5 of the whole flat No.501 and the suit schedule terrace area chose to remain absent. Thus, there is absolutely no evidence to support the claim of D1 to D5 that they also purchased the suit schedule terrace area of 4333 Sq Ft. I hold that D1 to D5 failed to prove that they have got any right, title or interest over the suit schedule property of 4333 Sq Ft area on the terrace. Hence, I hold that it is common area of the Building named Babu Khan Mall and is to be treated as such as per the Laws governing the
Apartment Common areas and the Bye laws of plaintiff Society.
14.Coming to the relief of the plaintiff Society for damages and mesne profits, it is seen from the written statement of D1 to D5 that they claimed that D6 failed to pay
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rents to them and due that that and other reasons, they filed OS 2016 against D6 for eviction and other reliefs. No evidence is produced on behalf of the defendants to prove said fact. However, burden cannot be placed on the plaintiff to file proof of the rents received by D1 to D5 from D6 and I hold that plaintiff can lay a claim for damages and mesne profits.
15.On their part, plaintiff got marked Ex.A4 and A8 which are certified copies of lease deeds. Ex.A4 lease deed is of the year 2006 from June 2006 to May 2012. The 2nd lease deed is from February 2013 to December 2016. Plaintiff sought damages from June 2006 to May 2012 under the first lease deed and from February 2013 to
December 2016 under the second lease deed to a total amount of Rs.19,10,024- 00+Rs.22,56,900-00 which comes to Rs.41,66,924/-. This court observes that plaintiff can claim damages ad mesne profits only for 3 years period preceding the date of fling the suit and for not more than that. I hold that Plaintiff is entitled to claim damages and mesne profits for illegal use and occupation of the suit property for 3 years period preceding the date of fling the suit and from the date of filing the suit till the defendants No.1 to 5 vacate the suit property. Plaintiff is granted liberty to file a petition under Order XX Rule 12 CPC for ascertaining mesne profits for the aforesaid period These issues are decided accordingly in favor of the plaintiff.
Issue No.3:
16.In view of findings given in Issues No.1 to 3, the suit of the plaintiffs has to be decreed accordingly.
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17.IN THE RESULT, the suit is decreed with costs. Defendants No.1 to 5 are hereby directed to vacate and hand over vacant physical possession of the suit schedule property to the Plaintiff Society within 2 months from the date of passing this
Decree. Plaintiff Society is entitled for recovery of damages and mesne profits from defendants No.1 to 5 for 3 years preceding the date of filing the suit and from the date of filing the suit till the date of delivery of vacant possession of the suit schedule property to the Plaintiff Society. Plaintiff Society is at liberty to file a petition under
Order XX Rule 12 CPC for inquiry into ascertainment of damages and mesne profits.
Suit is dismissed against Defendant No.6.
Dictated to Stenographer, transcribed by her, Corrected and Pronounced by Me in the
Open Court, on this the 28 th day of April, 2022.
Sd/-
XXV Additional Chief Judge, City Civil Court, Hyderabad.
APPENDIX OF EVIDENCE:
WITNESSES EXAMINED: FOR PLAINTIFF: FOR DEFENDANT: PW1: Jatin Khanna None
DOCUMENTS MARKED FOR PLAINTIFF:
Ex.A1: Certified copy of certificate of incorporation of plaintiff society dated 02-09- 2011
Ex.A2: Certified copy of bye laws of plaintiff society along with declaration and affidavit dated 08-09-2011
Ex.A3: Certified copy of sale deed dated 14-06-2006
Ex.A4: Certified copy of registered lease deed dated 08-02-2013
Ex.A5: Letter addressed by the plaintiff to defendant No.6 dated 20-07-2013
Ex.A6: Letter addressed by the plaintiff to defendant No.1 dated July 2013
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Ex.A7: Bunch of photographs along with CD
Ex.A8: Certified copy of registered lease deed document No.2566/2006 dated 30-06- 2006
Ex.A9: Original authorization issued in favour of PW1 by the plaintiff society dated 02-08-2014
DOCUMENTS MARKED FOR DEFENDANTS: -NIL-
Sd/-
XXV Additional Chief Judge, City Civil Court, Hyderabad.
Order Record 400 total
| Case No. | Parties | Date | Type | Outcome |
|---|---|---|---|---|
| OS/53/2007 | Smt.Ravitha P.Redy vs Marii Krishna Reddy | 30 Apr 2022 | Judgement | — |
| OS/184/2007 | P.V.Ravindra Nath Choudhary vs J.Ramalakshmi | 30 Apr 2022 | Judgement | Compromised |
| AS/210/2015 | Shaik Mohd. Omer vs Mohd Basith | 29 Apr 2022 | Judgement | — |
| OS/634/2010 | Smt Batulla Satyavathi vs M/s Pavan industries | 29 Apr 2022 | Judgement | — |
| OS/693/2014 | Babu Khan Mall Owners Welfare Society vs K. Srinivas Reddy | 28 Apr 2022 | Judgement | — |
| OP/4/2021 | Kesamoni Yellamma vs All Concerned., | 27 Apr 2022 | Orders | — |
| OP/1890/2014 | Ilyas Mohammed Khan vs The Special Deputy Collector | 27 Apr 2022 | Orders | — |
| OP/2009/2014 | S. Padma Reddy vs Ms. Jubilee Hills International Centre | 27 Apr 2022 | Orders | — |
| OP/2048/2014 | S. Padma Reddy vs Ms. Jubilee Hills International Centre | 27 Apr 2022 | Orders | — |
| OS/324/2010 | D. Srihari vs D. Nagabhushanam | 27 Apr 2022 | Judgement | — |
| AS/7/2016 | N. Shyam Rao vs Md. Moin | 26 Apr 2022 | Judgement | — |
| OS/230/2021 | Palicharla Mydhily vs Greater Hyderabad Municipal Corporation | 26 Apr 2022 | Judgement | — |
| OP/454/2015 | Ms.Secretary Jainthi Apartment Owners Association vs Special Deputy Collector | 25 Apr 2022 | Orders | — |
| OP/561/2009 | SOMVANSHI ARYA KSHATRIYA SAMAJ vs ANAND RAO UBALE AND 2 OTHERS | 25 Apr 2022 | Orders | — |
| OP/2597/2014 | K.Surender vs The Spl. Dy. collector | 25 Apr 2022 | Orders | — |
| OS/263/2020 | Aparanji Veldurthy vs V.Madhusudhan Rao | 25 Apr 2022 | Judgement | — |
| OS/377/2017 | Al Miyyassa Ali Salam A Al Hamedi vs Ali Salem A Al Hamedi | 25 Apr 2022 | Judgement | — |
| OS/370/2021 | Atluri Somasekhara Rao vs Dasari Taraka Hari Hara Prabhu | 21 Apr 2022 | Orders | — |
| AS/58/2015 | Praful Chand Agarwal vs Vidya Devi Agarwal | 19 Apr 2022 | Judgement | — |
| AS/81/2015 | Praful Chand Agarwal vs Sitaram Agarwal | 19 Apr 2022 | Judgement | — |
| OP/790/2016 | Gantela Laxmi vs P. Venkataiah | 19 Apr 2022 | Orders | — |
| OS/594/2019 | M.V.Hanumantha Rao vs Rakesh Naik | 19 Apr 2022 | Orders | — |
| OP/1368/2015 | Mohd. Arshad Alias Mohd. Arshad vs Potu Srinivas | 18 Apr 2022 | Orders | — |
| OS/65/2014 | Syed Ayub OSman Al-HAsni vs Mohsin Awad Baeshwar | 18 Apr 2022 | Orders | — |
| OS/61/2013 | Ms Corey Organics Pvt Ltd Rep A.Haribabau vs Mayuka Labs Pct Ltd Rep N.Krishna murthy Chandra shekhar and others | 13 Apr 2022 | Judgement | — |
| OS/164/2014 | Ms Agri Gold Projects Limited vs Ms Sagarika Mines and Minerals | 13 Apr 2022 | Judgement | — |
| OS/360/2009 | Mir Asif Ali vs Md. Abdul Khaleel | 13 Apr 2022 | Orders | — |
| OS/1068/2014 | Murari Lohia vs Radheshyam Sen | 13 Apr 2022 | Orders | — |
| AS/44/2017 | S.Narsimha vs Sunitha Waghray | 11 Apr 2022 | Judgement | — |
| AS/96/2014 | A.V.N. Sarma vs A. Srikanth | 08 Apr 2022 | Judgement | — |
| OS/746/2015 | Ms. Asian Bearings and Tools Corporation vs The Sirpur Paper Mills Limited | 08 Apr 2022 | Orders | — |
| AS/257/2018 | Sri, Jagadamba Ginning and pressing Pvt Ltd vs M/s Sharadha Terry Products Ltd. | 01 Apr 2022 | Issues | — |
| G.W.O.P/25/2021 | Jawad Ahmed vs All Concerned., | 29 Mar 2022 | Orders | — |
| G.W.O.P/28/2021 | Mohammed Asadullah Khan vs All Concerned., | 28 Mar 2022 | Orders | — |
| CMA/78/2018 | Rashmi Singh vs Greater Hyderabad Municipal Corporation | 25 Mar 2022 | Orders | — |
| OP/640/2015 | S. Fareed Ul Hassan vs The Special Deputy Collector | 24 Mar 2022 | Orders | — |
| OS/1039/2013 | Prof. Shaik Zameeruddin vs Smt. parveen fatima | 24 Mar 2022 | Judgement | — |
| EP/1800072/2018 | A.Shankaraiah vs V.Bhaskarchowdry | 17 Mar 2022 | Orders | — |
| OP/2589/2015 | G.Narasimha Reddy vs MS.Ganga Hitech City-2 Society | 17 Mar 2022 | Orders | — |
| OS/734/2019 | E.Bhanu Prakash vs M/s Anjali Constructions | 17 Mar 2022 | Judgement | — |
| AS/243/2015 | M.A. Hannan vs The District Collector | 16 Mar 2022 | Judgement | — |
| CMA/36/2018 | K.jayamma vs K.Jagdish | 16 Mar 2022 | Orders | — |
| OP/194/2017 | Ms Siraj and Renu vs Hederabad Golf Association | 16 Mar 2022 | Orders | — |
| OP/2914/2014 | Susheel Naik @ S. Nayak vs Swamy Pulli | 15 Mar 2022 | Orders | — |
| OP/992/2015 | B. Divya Sai vs M. Subramanyam | 14 Mar 2022 | Orders | — |
| OP/1625/2014 | G.B.Shyam Rao vs The Adi Hindu Social Service League | 14 Mar 2022 | Orders | — |
| CMA/1/2020 | Mohammed Jamaluddin vs M/s Pride India Mansion Pvt Ltd. | 11 Mar 2022 | Orders | — |
| CMA/57/2019 | Dr.T.Narayan Reddy vs M/s Pride India Mansions Pvt. Ltd., | 11 Mar 2022 | Orders | — |
| OP/1938/2014 | Gaddam Vijaya Kumari vs Pantham Adarsh Kumar | 11 Mar 2022 | Orders | — |
| OP/2356/2015 | Smt.Boddu Savitramma vs Tallisetty Kotaiah | 11 Mar 2022 | Orders | — |
| OS/499/2018 | Nagur Rahul Reddy vs Dasri Parameshwari alias K.Sindhu | 11 Mar 2022 | Orders | — |
| OP/374/2015 | Zubeda Begum vs Naresh Talari | 10 Mar 2022 | Orders | — |
| OP/582/2015 | Afsari Begum vs Mohd. Jahangir | 10 Mar 2022 | Orders | — |
| OP/1111/2017 | Jakkula Rajitha vs Lalu Ajimera | 10 Mar 2022 | Orders | — |
| OP/1971/2015 | K. Anjaiah vs Kamble Sunil | 10 Mar 2022 | Orders | — |
| OS/426/2015 | Ms. Ganga Containers vs A.H. Food Products | 10 Mar 2022 | Orders | — |
| G.W.O.P/12/2020 | Muthyala Sahasrika vs The Life Insurance Corporation | 10 Mar 2022 | Orders | — |
| G.W.O.P/21/2020 | Chappidi Lakshmi Reddy vs All Way Concern | 10 Mar 2022 | Orders | — |
| OP/481/2015 | Ms. Kakinada Seaportd Limited vs Sri Dattatreya Constructions and Services Pvt.Ltd. | 09 Mar 2022 | Orders | — |
| OS/35/2009 | Brijgopal Asawa vs Gopikishan Asawa | 08 Mar 2022 | Orders | — |
| OS/166/2021 | Tallapaneni Sreedhar vs Hyderabad Insitute of Oncology Pvt Ltd., | 08 Mar 2022 | Orders | — |
| OS/403/2021 | Sripada Shubhalakshmi vs Sripada Venkata Rajendra Krishna Prasad | 08 Mar 2022 | Judgement | — |
| EP/1800073/2018 | Vankadara Vasundhara DEvi vs M/SS.Sree Sree Sreenivasa Constructions | 07 Mar 2022 | Orders | — |
| OS/468/2015 | Sunil Kumar Sarda vs Santosh Sarda | 07 Mar 2022 | Issues | — |
| OS/665/2015 | G. Surender Reddy vs Sri. P. Prabhakar | 04 Mar 2022 | Orders | — |
| OS/950/2014 | Beumer Technology India Private Limited vs Sanghavi Engineering | 04 Mar 2022 | Judgement | — |
| OS/890/2015 | Haroon Bin Abdullah Boam vs Mohd. Zafaruddin | 03 Mar 2022 | Orders | — |
| OS/891/2015 | Haroon Bin Abdullah Boan vs Aziz Fathima | 03 Mar 2022 | Orders | — |
| OP/978/2012 | Ms. Kareem Trust vs The Spl Dy.Collector | 02 Mar 2022 | Orders | — |
| OS/138/2018 | M.srinivas rao vs Irukulla praveen | 28 Feb 2022 | Judgement | — |
| OP/51/2016 | MD Moin vs Special Deputy Collector | 11 Feb 2022 | Orders | — |
| OP/53/2016 | Wajida Sultana vs Spl Deputy collector | 11 Feb 2022 | Orders | — |
| OP/263/2018 | Mount Hermon Prayer House. vs K.Josyam | 10 Feb 2022 | Orders | — |
| OP/1109/2015 | Tejavath Ambi vs Ms. Automotive Manufacturers Private Limited | 10 Feb 2022 | Orders | — |
| OP/1327/2015 | Praveena Raj vs Ms Automotive Manufacturers Private Limited | 10 Feb 2022 | Orders | — |
| OP/1544/2015 | B. Jayasri vs Azeemoddin | 10 Feb 2022 | Orders | — |
| OS/613/2015 | Dinaz Hari Narayan Singh vs A. Kishan Rao | 10 Feb 2022 | Orders | — |
| OS/818/2015 | Hameeda Banu and 5 others vs M.A. Khader Lathwala and 23 others | 10 Feb 2022 | Orders | — |
| OP/1026/2014 | Mohammed Farooq @ Farooq vs Sharif | 09 Feb 2022 | Orders | — |
| OS/146/2007 | G.Sathyanarayana vs G.Hanumatha Rao | 08 Feb 2022 | Judgement | — |
| OS/1040/2017 | Mohd. Sadiq Ali vs MOhd.Ghouse MohiuddinQuadrishafri | 08 Feb 2022 | Orders | — |
| AS/47/2021 | Syed Yaseen Ali vs Syed Maqbool Ali | 07 Feb 2022 | Orders | — |
| OP/93/2015 | V. Laxmamma vs Nirnemula Murali | 07 Feb 2022 | Orders | — |
| OP/2780/2016 | Smt.V.Samrajyam vs Nafees Lakhani | 07 Feb 2022 | Orders | — |
| AS/215/2016 | Shaik jaan Ahmed vs The Tahsildar, | 21 Jan 2022 | Orders | — |
| OP/2050/2015 | A.Pochamma vs R.Durga Prasad | 21 Jan 2022 | Orders | — |
| CMA/59/2021 | Chavva Srinivas vs G.Sharada | 20 Jan 2022 | Orders | — |
| OP/23/2020 | Pushkala Gopal vs Shruti Sriram | 19 Jan 2022 | Orders | — |
| OS/800/2014 | Mohd. Ghouse Qureshi vs Mohammed Mahboob Qureshi | 19 Jan 2022 | Orders | — |
| OP/1685/2014 | Smt.G. Anasuya vs Reql Foord International School | 18 Jan 2022 | Orders | — |
| OP/2455/2014 | J.P.Rao vs The Commissioner GHMC | 18 Jan 2022 | Orders | — |
| OS/297/2009 | Venugopal Asawa vs Reena Agarwal | 17 Jan 2022 | Orders | — |
| OP/1764/2014 | Smt. G. Bhavani vs Pathlavath Babu | 12 Jan 2022 | Orders | — |
| OP/2171/2016 | Pola Bhaskar Reddy vs V. Raghuramudu | 11 Jan 2022 | Orders | — |
| OP/2616/2014 | Ch.Sudhakar Reddy vs Ms Spectra India Housing Pvt. Ltd. | 11 Jan 2022 | Orders | — |
| OP/2618/2014 | Ch.Sudhakar Reddy vs Ms Spectra India Housing Pvt. Ltd. | 11 Jan 2022 | Orders | — |
| OP/2620/2014 | Ch.Subhash Reddy vs Ms Spectra India Housing Pvt. Ltd. | 11 Jan 2022 | Orders | — |
| OP/2681/2016 | G. Shankar vs V. Raghuramudu | 11 Jan 2022 | Orders | — |
| OP/1882/2017 | Rayeesa Fathima vs N.Vasudevan Nair | 10 Jan 2022 | Orders | — |
| OP/2307/2014 | Eshwar Sudharshan Rao vs Special Deputy Collector | 07 Jan 2022 | Orders | — |
Monthly Orders (Last 12 Months)
| Apr 2022 | 38 | |
| Mar 2022 | 49 | |
| Feb 2022 | 20 | |
| Jan 2022 | 26 | |
| Dec 2021 | 41 | |
| Nov 2021 | 36 | |
| Oct 2021 | 24 | |
| Sep 2021 | 26 | |
| Aug 2021 | 4 | |
| Jul 2021 | 9 | |
| Jun 2021 | 8 | |
| May 2021 | 3 |
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Frequently Asked Questions
How many cases has SMT. B. PRATHIMA handled?
SMT. B. PRATHIMA has handled 493 court orders since 2019 at HYD, City Civil Court Complex. The average disposal rate is 174 orders per month.
What types of cases does SMT. B. PRATHIMA hear?
Based on available records, SMT. B. PRATHIMA primarily handles Civil matters (Original Suits, Original Petitions) at HYD, City Civil Court Complex.
Where is SMT. B. PRATHIMA currently posted?
SMT. B. PRATHIMA is posted as XXVI ADDITIONAL CHIEF JUDGE at HYD, City Civil Court Complex, Hyderabad, Telangana.
Are judgments by SMT. B. PRATHIMA available online?
Yes. 5 judgments by SMT. B. PRATHIMA are available on Legistro with full text, outcome, and sections cited.
How fast does SMT. B. PRATHIMA dispose cases?
SMT. B. PRATHIMA disposes approximately 174 cases per month, based on 493 orders handled over their tenure at HYD, City Civil Court Complex.
Since when is SMT. B. PRATHIMA serving?
SMT. B. PRATHIMA has been serving at HYD, City Civil Court Complex since 2019.
Case Types
Posting History
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Jan 2020 — Feb 2020XXVI ADDITIONAL CHIEF JUDGE
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Nov 2019 — May 2022XXV ADDL CHIEF JUDGE · 493 orders
Outcomes on Record
Other Judges at this Court